Director of Public Prosecutions v Vishal
[2017] VCC 2074
•28 September 2017
|
CR-17-00952
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VISHAL VISHAL |
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| JUDGE: | HIS HONOUR JUDGE O’CONNELL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 September 2017 |
| DATE OF SENTENCE: | 28 September 2017 |
| CASE MAY BE CITED AS: | DPP v Vishal |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 2074 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Dishonestly obtaining financial advantage by deception (14 charges); unclear motivation; need for denunciation; continuing enterprise offender; serious offending
Legislation Cited: Sentencing Act 1991 Vic s 6AAA, s 6J(1)
Cases Cited:DPP v Bulfin [1998] 4 VR 114; DPP (C’th) v Gregory [2011] VSCA 145; Dyason v R [2015] VSCA 120
Sentence:Total effective sentence: 4 years 6 months imprisonment, non parole period of 2 years 6 months imprisonment
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of public prosecutions |
For the Offender | Mr M. Cookson | Balot O’Reilly |
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134 (Prepared by DTI Corporation Australia Pty Ltd)
194782
HIS HONOUR: Vishal Vishal, on 8 September 2017 you pleaded guilty to 14 charges of obtaining financial advantage by deception and one charge of theft. Particulars of those charges are as follows:
Charge No Offence Period of Charges Amount Obtained Schedule and Number of Transactions Maximum Penalty 1 Dishonestly obtaining financial advantage by deception 5 March 2013 to
5 August 2014
$282,115.35 Schedule A 18 separate transactions 10 years 2 Dishonestly obtaining financial advantage by
deception
14 March 2013 to
23 October 2013
$2,477.97 Schedule B 4 separate transactions 10 years 3 Theft 6 March 2013 to
10 October 2014
$350,868.78 Schedule C 25 separate transactions 10 years 4 Dishonestly obtaining financial advantage by
deception
7 October 2013 to
8 October 2013
$8,801.00 Schedule D 2 separate transactions 10 years 5 Dishonestly obtaining financial advantage by deception 7 November 2013 to
11 December 2013
$2,232.73 Schedule E 2 separate transactions 10 years 6 Dishonestly obtaining financial advantage by
deception
7 January 2014 to
18 July 204
$53,845.00 Schedule F 2 separate transactions 10 years 7 Dishonestly obtaining financial advantage by deception 14 April 2014 to
28 May 2014
$4,897.20 Schedule G 2 separate transactions 10 years 8 Dishonestly obtaining financial advantage by
deception
6 August 2014 to
16 December 2014
$37,970.22 Schedule H 5 separate transactions 10 years 9 Dishonestly obtaining financial advantage by deception 1 September 2014 $87,040.66 1 transaction 20 years (CCE) 10 Dishonestly obtaining financial advantage by
deception
2 September 2014 $137,505.18 1 transaction 20 years (CCE) 11 Dishonestly obtaining financial advantage by deception 19 September 2014 $59,050.99 1 transaction 20 years (CCE) 12 Dishonestly obtaining financial advantage by deception 30 September 2014 $75,205.80 1 transaction 20 years (CCE)
13 Dishonestly obtaining financial advantage by
deception
5 November 2014 $52,792.69 1 transaction 20 years (CCE) 14 Dishonestly obtaining financial advantage by deception 10 November 2014 to
17 November 2014
$2,809.62 Schedule J
4 transactions
10 years 15 Dishonestly Obtaining financial advantage by
deception
8 December 2014 $64,766.02 1 transaction 20 years (CCE)
You stole or obtained by deception a total of $1,221,802.10 from your employer, Technology Transfer and Outsourced Components, the TTOC, between 5 March 2013 and 8 December 2014. Of those moneys you have repaid $653,961.36, a total of $567,840.74 remains outstanding.
You used two methods to obtain the moneys. The first method involved you falsifying invoices to various clients of your employer and substituting your own personal bank details for that of your employer’s. That conduct constitutes Charges 1, 2 and 4 to 15 inclusive.
The second method of obtaining these moneys involved you directly transferring money from TTOC’s bank accounts into your own personal bank account, and that conduct constitutes Charge 3.
The factual basis on which you are to be sentenced was set out in detail in the prosecution opening on the plea which is Exhibit A. You admitted the facts set out in that document and I will annex it to these reasons.
In summary, towards the end of 2009, Nishakanth Semitha employed you as the General Manager of TTOC operations. At that stage you had not long completed a Masters of Business IT and Commerce at RMIT.
Mr Semitha employed you as a favour to his mother. Your mother and Mr Semitha’s mother both live in India and are close friends.
TTOC was a family company involved in sourcing and supplying components
to the mining, commercial and industrial sectors and had worldwide clients. Mr Semitha was the managing director of the company. The other Director/ Secretary was his wife, Rajkamal Semitha. When Mr Semitha employed you he treated you like a member of his family and he gave you full authority over TTOC operations and its banking systems. At that time the company operated from two locations with an office in Heidelberg West and a factory/warehouse in Thomastown. The business employed about six people.
Mr Semitha told police that you seemed to fit in well, you were trusted, you appeared to be loyal and work hard. Mr Semitha’s business partner, Bernard Morin, told police that to his observation Mr Semitha did indeed treat you as part of the family. He said you were given company shares in two subsidiary companies in order to encourage commitment to the business.
In your role as general operations manager you had full electronic access and signatory authority over all of TTOC’s accounts. Mr Semitha and Mr Morin would travel quite a lot in order to build the business and you were relied on to control all aspects of the company’s finances to ensure the TTOC accounts receivable and payable were up to date.
In November of 2014 a longstanding client of TTOC showed Mr Semitha a document which purported to be a TTOC invoice, however, it was in a different format to genuine TTOC generated invoices. It contained bank details not belonging to TTOC. The prices on the items listed in the invoice were well below TTOC’s minimum selling price. You were present when this issue was first raised with Mr Semitha and you were described as being calm. You stated that you would immediately look into the matter.
About this time Mr Semitha became aware of some other discrepancies whereby items had been leaving the Thomastown warehouse without full documentation being sent back to the Heidelberg office. Mr Semitha, however, did not suspect that you were responsible for these discrepancies.
He had placed his absolute trust in you.
There were further discussions and meetings at which you were described as being defensive. You otherwise behaved as if you knew nothing as to what might have caused the discrepancies. Eventually, it was decided that a full stocktake of the warehouse be carried out over 16 to 18 January 2015.
On 12 December 2014 you asked to speak privately with Mr Semitha. At that meeting you broke down and cried and said:
“I’ve done a small mistake;” “I’ve stolen a little bit of money because my mother urgently needed it.” And, “I’m feeling bad that I’ve done it to someone who’s helped me so much.”
Mr Semitha responded by saying, “You shouldn’t worry about it as long as it was only a small mistake and that it would be sorted out over the Christmas holidays.
The stocktake was conducted the following month and immediately identified large discrepancies. You offered to investigate those discrepancies. However you were aware that Mr Morin and another staff member were going back to the warehouse to check those discrepancies. The following day $600,000.00 worth of stock was found to be missing. On Monday 19 January 2015 you approached Mr Semitha, again privately, and told him that you had stolen just
$35,000.00 for your mother and that you would pay it all back the next day. You did in fact repay $35,000.00.
Shortly afterwards a further $180,000.00 discrepancy was identified wherein moneys had been paid into a Commonwealth Bank account which you controlled. You were asked to repay the $180,000.00 immediately and to also provide details of the Commonwealth Bank account concerned. Once the bank statements were finally provided Mr Semitha realised that you had stolen in excess of $900,000 from him.
18On 6 February 2015, Mr Semitha confronted you and told you that the theft he had identified was closer to one million dollars. He told police that you did not appear to be shocked by that figure. You responded by offering to repay only
$18,000.00.
19On the morning of 18 February 2015, Mr Semitha received a text message from you telling him that your office keys and telephone were in Mr Semitha’s mail box at home. When Mr Semitha arrived at his office that day he noticed that you had been into the office and had cleared your desk, that a bag was missing and the computer data had been wiped or deleted from your computer. Several company documents in the form of pricings and invoices from suppliers were also missing
20After a lengthy investigation by police with the assistance of a senior forensic accountant it was confirmed that 46 deposits from TTOC customers totalling
$876,800.87 had been made into your bank account. Each of the 46 deposits from customers were derived from fraudulent invoices which you had created and for which the clients paid for the items by transferring money into your account. It was also determined that 24 electronic funds transfers from various TTOC accounts had been directed to that bank account in an amount totalling
$345,001.23.
Maximum penalties
21The maximum penalty for obtaining financial advantage by deception and for theft is 10 years imprisonment. Pursuant to s6H(1)(c) of the Sentencing Act 1991, an offender who is found guilty of three or more continuing criminal enterprise offences is subject to a maximum term of imprisonment, which is two times the length of the maximum term. In respect of Charges 9, 10, 11, 12, 13 and 15, you fall to be sentenced as a continuing criminal enterprise offender. Accordingly, the maximum penalty for those offences is 20 years’ imprisonment.
The seriousness of the offence
22Having regard to the amounts involved, the duration over which the offending occurred and the sophistication employed in defrauding your employer, these offences must be regarded as serious examples of this type of offending. The level of trust breached through this offending is of a particularly high order. It is not simply that you stole from an employer who entrusted you with the responsibility of managing the finances of his business but that you also did so in the context of having been taken in and effectively treated as a member of his family.
Victim impact
23Mr Semitha provided a Victim Impact Statement, Exhibit B on the plea, which set out in detail the dismay he felt as the true nature of what you had done to his business was slowly revealed. He stated the following:
“When the full scale of the theft was realised it confused me to a great extent as I thought I had done everything right as an employer to the accused, good remuneration, significant shares without his financial contributions in companies that I had started.
I was also very angry with myself for trusting a person and giving him full financial control of the company me and my family had worked hard and made sacrifices to establish.
This had had an enormous toll on me and my family as we were trying to figure out how we were going to pay huge amounts owed to suppliers in order to keep the business alive which paid for our livelihood. Suddenly we were left with the prospect of losing everything including our house, lifestyle and assets we built over 19 years.
The most painful experience was explaining the scale of the theft and the prospect of closing down the business to my other employees if we could not rally enough funds to sustain the business. I had to also explain that there would be no salary increments or perks for a period of time if we managed to rally the required funds.
I feel very upset that 19 years of hard work, sacrifices and time spent was destroyed within two years. The last two and a half years has been wasted trying to keep afloat instead of pursuing business growth, spend some quality time with my wife and
teenage daughter, meet up with old friends et cetera. It continues to be a nightmare as I am still trying to get back to scratch.”
The impact of your offending must weigh heavily in the sentencing synthesis.
Personal circumstances
Turning to matters personal to you, you were born on 23 February 1981 and are now 36 years of age. You grew up in the south of India and as an only child you were the focal point of your parents’ lives. From an early age you were apparently placed under a great deal of pressure to obtain good grades, to be polite and to excel in all that you did.
As you told Dr Paul Grech, a consultant clinical psychologist who examined you for the purposes of your plea,
“My mother used to love me dearly but it was suffocating because I was not allowed to do a lot of things that I wanted to because she was scared that she would lose her only child.”
Although your father passed away when you were 17 years of age, you experienced a loving and supporting upbringing provided by your mother who is now a retired bank manager continues to live in India. Your family has always emphasised the importance of education, and in that you appear to have excelled. After completing High School at St. Aloysius in Mangalore you went on to study at University at Dharwad and completed a Bachelor of Electronic Engineering with First Class Honours in 2004. You worked initially as a software programmer and customer service consultant at Dell Computers in India and also undertook similar work at Citibank until the end of 2006.
In 2007 you came to Australia on a student visa and undertook a Masters in Business IT and Commerce at RMIT. You completed that course with distinction at the end of 2009. You were employed by TTOC shortly after completing your Master’s Degree.
Mr Dunn QC, who appeared on your behalf with Mr Cookson, explained that
after you arrived in Australia you worked in various part-time jobs to support yourself, pay your university fees and help support your mother in India. You apparently did well, enjoying life in Australia and ultimately becoming an Australian citizen in 2014.
You formed a relationship with a woman of Indian background. However, the relationship failed after your mother expressed her disapproval of the relationship. In late 2012 and early 2013, you formed another relationship with a woman who was not of Indian background. Again, this relationship was disapproved of by your mother, although that relationship has now ceased you remain on amicable terms with your former partner. You have a 17-month old daughter from that relationship.
The evidence establishes that $1,221,802.10 was transferred into bank accounts in your name. Before the matter was detected, you had repaid
$466,840.53, leaving a net balance of $754,961.57. A further $187,120.83 was repaid after your offending was discovered. As I indicated earlier, a total of $567,840.74 remains outstanding.
It was suggested that as to the moneys not repaid, about $350,000.00 to
$400,000.00 was sent to your mother in India. A further $170,000.00 to
$220,000.00 approximately was spent on so called lifestyle expenses such as holidays, restaurants and the like.
Mr Dunn explained that when you had come to Australia you were determined to forge a new life for yourself. You had stolen the money, he suggested, in the context of feeling as if you needed to meet the expectation of your mother and your family. Moreover, you appear to have adopted an expensive lifestyle in order to present yourself as a person of means and of success. It was suggested that you intended to repay the moneys, but found that you were unable to do so.
It should be said that there remains a lack of clarity as to your motivation for
such large-scale dishonesty. It was not suggested that you had any difficulties with drugs, gambling or some other psychological condition that might help explain your offending. How you were able to rationalise the 70 separate instances of dishonesty, from someone so close to you as Mr Semitha was, remains a mystery.
Understandably, a good deal of time and effort was needed to unravel all of your dishonestly. Your inadequate confessions to Mr Semitha and the wiping of or deleting of potential evidence from your computer no doubt made that task more difficult. Accordingly you were not charged until February of 2017.
However, you indicated very shortly afterwards that you were prepared to plead guilty. You waived your right to committal and I accept that the plea was effectively entered at the earliest opportunity. I also accept that there is a good deal of utilitarian value in adopting the attitude that you have to these charges. Clearly, a long and costly trial has being avoided.
It was submitted that your plea was also indicative of remorse. You told the psychologist, Dr Grech, that,
“Leaving my mother was the hardest thing as she was all by herself, but I had to do this for a better life. I finished my dual masters with distinction. I started work as an assistant manager in IT for a Telecom company in South Melbourne, then Nishakanth Semitha offered me a position at TTOC. Around this time I also had a relationship breakdown with my then-girlfriend who hated the fact that I kept working late hours. Along the line I took the most foolish step in my life. I decided to engage in fraudulent activities for two years to recover which at the time I foolishly justified in my own head as being mine, not appreciating the pain I was causing to Nishakanth and his family as well as colleagues at TTOC. I felt massively guilty and remorseful every day.”
In all the circumstances I am prepared to accept that you are now remorseful for the loss and the suffering that you have caused to Mr Semitha, his family and your former work colleagues.
I take into account that you have been waiting to resolve this matter since its detection in early 2015 and that has weighed heavily upon you. In the interim I am told you have been gainfully employed, although you have resigned your position as a purchasing officer in the expectation of having to serve a term of imprisonment in relation to these matters.
Your prospects for rehabilitation appear now to be good. You have no prior convictions nor have you subsequently offended. You have excellent educational qualifications, and relying upon Dr Grech’s report you appear to be insightful about the effects of your offending on the victims and sorry for what you have done. Dr Grech confirms that there is no suggestion drugs, alcohol, gambling or other problematic behaviour of that kind contributed to your offending or is likely to cause you problems in the future. You have a 17- month old daughter with whom you wish to maintain a relationship.
Mr Dunn made the point that imprisonment for you will be difficult in that your family is in India, and that whilst you have a number of acquaintances in this country you attended court alone and you are not likely to be supported by people here during the service of any term of imprisonment.
Sentencing submissions
Turning briefly to the sentencing submissions made by the parties, Mr Porceddu, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending should be characterised as a case of greed rather than need. He emphasised the gross breach of trust, this offending involved, together with the large amounts taken and the impact your offending had on the victims. This was a matter, he submitted, in which general deterrence must loom large
To make that point Mr Porceddu referred me to a series of cases which pick up Charles JA’s analysis in the DPP v Bulfin [1998] 4 VR 114, adopted in decisions such as DPP v Gregory 34 VR 1 and Dyason v R [2015] VSCA 120.
In essence, the sentencing purpose of general deterrence will usually carry particular significance in sentencing for crimes such as this, both in relation to the total effect of sentence and the non-parole period.
44On the other hand, Mr Dunn emphasised your early plea, your remorse, your lack of prior and subsequence convictions, your otherwise good character, your good prospects for rehabilitation, the delay, the significant burden of imprisonment for you, and the fact that there had been significant restitution. He urged that although you recognised that a term of imprisonment must be imposed, its length should be very much constrained by those matters put in mitigation.
Analysis
45Ultimately, I must impose a sentence which is no more severe than is necessary to achieve the relevant sentencing purposes set out in s.5(1) of the Sentencing Act. Those purposes that are particularly engaged here are Just Punishment, General Deterrence, the need to manifest Denunciation of your conduct, and the need to facilitate your rehabilitation to the extent that that might be possible.
46It is fundamental that people in positions of trust such as you were understand that if they commit acts of this kind they will be severely punished. I accept Mr Porceddu’s submissions as to the nature and gravity of your offending and the consequent need to emphasise general deterrence. Your conduct requires strong denunciation.
47Nevertheless, I accept that your understanding of the harm you have done and your remorse for having caused that harm are important positive indicators for the future. I am therefore mindful that the sentence imposed here should encourage your rehabilitation to the extent that that is possible in all of the circumstances.
Please Stand – you will be sentenced as follows:
Charge No Offence Period of Charges Amount Obtained Schedule and Number of Transactions Sentences 1 Dishonestly obtaining financial advantage by deception 5 March 2013 to
5 August 2014
$282,115.35 Schedule A 18 separate transactions 18 months 2 Dishonestly obtaining financial advantage by
deception
14 March 2013 to
23 October 2013
$2,477.97 Schedule B 4 separate transactions 4 months 3 Theft 6 March 2013 to
10 October 2014
$350,868.78 Schedule C 25 separate transactions 21 months 4 Dishonestly obtaining financial advantage by
deception
7 October 2013 to
8 October 2013
$8,801.00 Schedule D 2 separate transactions 4 months 5 Dishonestly obtaining financial advantage by deception 7 November 2013 to
11 December 2013
$2,232.73 Schedule E 2 separate transactions 4 months 6 Dishonestly obtaining financial advantage by deception 7 January 2014 to
18 July 204
$53,845.00 Schedule F 2 separate transactions 12 months 7 Dishonestly obtaining financial advantage by
deception
14 April 2014 to
28 May 2014
$4,897.20 Schedule G 2 separate transactions 4 months 8 Dishonestly obtaining financial advantage by deception 6 August 2014 to
16 December 2014
$37,970.22 Schedule H 5 separate transactions 12 months 9 Dishonestly obtaining financial advantage by deception 1 September 2014 $87,040.66 1 transaction 24 months (CCE) 10 Dishonestly obtaining financial advantage by
deception
2 September 2014 $137,505.18 1 transaction 27 months (CCE) 11 Dishonestly obtaining financial advantage by deception 19 September 2014 $59,050.99 1 transaction 24 months (CCE) 12 Dishonestly obtaining financial advantage by deception 30 September 2014 $75,205.80 1 transaction 24 months (CCE) 13 Dishonestly obtaining financial advantage by
deception
5 November 2014 $52,792.69 1 transaction 24 months (CCE) 14 Dishonestly obtaining financial advantage by 10 November 2014 to
17 November 2014
$2,809.62 Schedule J
4 transactions
4 months
deception 15 Dishonestly Obtaining financial advantage by
deception
8 December 2014 $64,766.02 1 transaction 24 months (CCE)
I order that 3 months of the sentences imposed on charges on 1,3,6,8,9,11,12, 13 and 15 [27months] be served cumulatively upon the sentence of 27 months imposed on Charge 10 [the base sentence], making a total effective sentence of 4 years and 6 months. I fix a non-parole period of 2 years and 6 months.
I make the following declarations: Pursuant to s.6J(1) of the Sentencing Act I declare that in respect of charges 9,10,11,12,13 and 15 you were sentenced for continuing enterprise offences.
Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a sentence of 6 years with a non-parole period of four years.
Pursuant to s 18 of the Sentencing Act I declare that you have already served 20 days in custody referable to this offending.
I will order compensation to the trustee of the Semitha Family Trust in the sum of $567,840.74, and I further order that having regard to the seriousness of the offending I will order that pursuant to s.464ZF of the Crimes Act that you must undergo a forensic procedure for the taking of a scraping from the mouth of a blood sample or a blood sample of sufficient standard to enable it to be placed on the database kept for that purpose, and I must inform you, Mr Vishal, that at the time of the request for the mouth scraping or blood sample, that if you do not consent the police may use reasonable force to enable that procedure to be conducted. Mr Cookson will more fully explain the effect of those orders and declarations to you, Mr Vishal. You may be seated.
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