R v Chintagunta

[2023] NSWDC 439

District Court

New South Wales

Medium Neutral Citation:

R v Chintagunta [2023] NSWDC 439

Hearing dates:

14 September 2023

Date of orders:

20 October 2023

Decision date:

20 October 2023

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Custodial sentence. For orders see [144].

Catchwords:

CRME – sentence - deal with money proceeds of indictable crime – attempt to deal with money proceeds of indictable crime.

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Code (Cth)

Cases Cited:

Cahyadi v R (2007)168 A Crim R 41; [2007] NSWCCA 1

Kim v The Queen [2016] VSCA 238

R v Ansari (2007) 173 A Crim R 112; [2007] NSWCCA 204

R v Huang; R v Siu (2007) 174 A Crim R 370

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Uday Chintagunta (Offender)

Representation:

Counsel:
Ms C Akthar (Crown)
Ms K Hogan (Offender)

File Number(s):

2022/93669

Publication restriction:

Nil.

REMarkS ON SENTENCE

1. The offender is to be sentenced in respect of the following two offences pursuant to s 400.6(1)(b)(i) of the Criminal Code (Cth) (“the Code”) to which he entered pleas of guilty in the Local Court.

2. The offences are:-

1. Sequence 8 – between about 17 September 2021 and about 16 November 2021 at Sydney in the State of New South Wales, he dealt with money or other property that was, and that he believed to be, proceeds of indictable crime and at the time of the dealing the value of the money or other property was $10,000 or more.

2. Sequence 9 – between about 22 September 2021 and about 26 October 2021 at Sydney in the State of New South Wales, he dealt with money or other property that was, and that he believed to be, proceeds of indictable crime and at the time of the dealing the value of the money or other property was $10,000 or more.

The maximum penalty proscribed for the offences was imprisonment for 10 years, or 600 penalty units, or both.

3. The following charge attached to Sequence 8 is to be dealt with on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth):-

1. Sequence 5 – offence pursuant to s 400.7(1)(b)(i) and s 11.1(1) of the Code.

   Between about 8 October 2021 and 11 October 2021 at Sydney in the State of New South Wales he attempted to deal with money or other property which was proceeds of indictable crime and he was reckless as to the fact that the money or other property was proceeds of indictable crime and at the time of the attempted dealing the value of the money or other property was $1,000 or more.

   4. The maximum penalty proscribed for this offence is imprisonment for 5 years or 300 penalty units, or both. The offender admitted his guilt in respect of this offence, and asked that it be taken into account on sentence.

   5. The offending therefore occurred between 17 September 2021 and 26 October 2021. The offender was arrested on 1 April 2022 and spent 12 days in custody from 1 April to 12 April 2022. A co-offender, Durga Thota is yet to be sentenced.

The sentence hearing

6. The sentence hearing took place on 14 September 2023. The Crown sentence summary became Exhibit A and it included an agreed statement of facts which may be summarised as follows.

7. The offender was born on 29 December 1994 and was an Indian national who at the time of the offending was in Australia on a student visa. In 2021 he responded to an advertisement for a job as a courier. Thereafter he acted at the direction of Prudvi Chinnam in what was a telecommunications scam.

8. Sequence 8 involved dealing with proceeds of indictable crime by means of a telecommunications scam carried out on three victims totalling $34,257.80. The agreed facts relating to the first victim, Thomas Redshaw, were outlined as follows.

9. Thomas Redshaw was targeted by a scam-call operator. Acting on instruction from the scam-call operator, Redshaw handed over cash and a bank card to the offender. The offender then used the bank card to withdraw cash and make several transactions.

10. Between about 10am and 11am on 17 September 2021, Redshaw was contacted by a scam-call operator. The scam-call-operator told Redshaw:

1. His bank accounts had been compromised;

2. 'Scammers' were opening multiple bank accounts in his name to send money overseas;

3. He needed to withdraw $5,000 and place it in a parcel along with his bank card, his personal identification number (PIN) for the bank card and name and address; and

4. A 'courier' would come to pick up the parcel.

11. Redshaw did so. At about 12:30pm, Chinnam contacted the offender over WhatsApp and directed him to Redshaw's address for 'cash pickup,' providing the offender with the 'password' '007.' Around 1:30pm, Chinnam provided the offender with Redshaw's car registration and description.

12. Shortly before 2pm, the offender approached Redshaw's car and provided the password '007.' Redshaw handed over the parcel containing $5,000 in cash and his CBA Mastercard to the offender.

13. Just after 2pm, the offender withdrew $1,000 from Redshaw's bank account at the Lane Cove Branch. The offender then deposited the total amount of $6,000 obtained from Redshaw so far, into his Commonwealth Bank (CBA) account. After doing so, the offender transferred $5,400 to Chinnam's account, retaining $600 for his services.

14. Between about 2.19pm and 2.20pm, Chinnam exchanged a series of WhatsApp messages with the offender, during which:

1. The offender sent an image of the gift card stand at Coles, Lane Cove, and stated, "done".

2. Chinnam replied with an image of the front of a Coles Myer Gift Card.

15. At about 2.23pm, at Coles Lane Cove, the offender purchased two "Coles Myer Gift Cards" to the total value of $800 with Redshaw's Mastercard.

16. At about 2.31pm, Chinnam received a series of WhatsApp messages from the offender, during which the offender sent two images depicting the gift cards.

17. At about 2.40pm, Redshaw, under instruction from scam-call-operator 'Jacob Smith', attended the Sydney Central Business District for the purpose of attending Macquarie Bank, Martin Place, where he was to withdraw $20,000 from his Macquarie Bank account and deposit it into his CBA Account which was linked to his CBA Mastercard. Redshaw was unable to locate Macquarie Bank, so he contacted his financial advisor and instructed him to conduct the transfer on his behalf. The $20,000 was later credited to Redshaw's CBA Account. On the same day the offender sent a series of WhatsApp messages to the co-offender Thota, sending him contact details for Chinnam.

18. Later the same day the offender used Redshaw’s Mastercard at a food outlet where he spent $32.95. Between 17 September and 21 September 2021 he made other purchases, including two $400 gift cards, thirty-eight $500 gift cards, two cash withdrawals of $1,000 and two further food purchases amounting to $32.95 and $24.85.

19. After purchasing the gift cards, the offender took photos of each card and the PIN provided for the use of each card which he sent to Chinnam before disposing of the cards, thereby making the funds accessible through the gift cards available to Chinnam. On 20 September 2021 after withdrawing $1,000 cash from an ATM using Redshaw’s bank card, he deposited that sum into his account before transferring it to Chinnam’s account.

20. Joanne Abi-Saab was also targeted by a scam-call operator. At about 4.30pm on 8 October 2021, Abi-Saab, received a call from a scam call operator, purporting to be 'Sheryan Alma' from Services Australia (SCO 1), during which:

1. The scam-call operator stated:

1. Abi-Saab had been the victim of identity theft;

2. 14 to 15 bank accounts had been opened in the name of Abi-Saab;

3. Abi-Saab was to admit being responsible for fraud and face possible gaol time or assist by confirming identity; and

4. Abi-Saab was to provide her Medicare number to confirm her identity.

2. Abi-Saab provided her Medicare number as proof of identity; and

3. The scam-call operator stated:

1. Abi-Saab would be contacted by a member of the Australian Federal Police to discuss the fraud matter; and

2. Abi-Saab should Google search the number of the AFP to ensure the authenticity of the call.

21. At about 5.00pm, while still on the phone with the scam-call operator, Abi-Saab conducted a Google search on the AFP and identified telecommunications service [phone] as a contact. Around the same time Abi-Saab received a telephone call from the same number which she believed was used by the AFP. In fact, the call originated from a second scam-call operator using a method called "spoofing" to falsely display the AFP contact number as being the originator of the call.

22. SCO1 instructed Abi-Saab to place her call on hold and to answer the second call. Abi-Saab answered the call, which was from a second scam-call operator purporting to be "Robert Watson" from the AFP (SCO2), during which he stated:

1. Abi-Saab was being investigated for money laundering against Services Australia;

2. Abi-Saab needed to transfer the remaining funds in her bank accounts to the "Deputy of the Treasurer" to ensure security of the funds given the identity theft; and

3. he was going to call Abi-Saab on WhatsApp and she needed to send through an image of her licence.

23. Between about 5.05pm and 5.06pm, Abi-Saab received a series of messages on WhatsApp from SCO2.

24. Abi-Saab continued the call with SCO2, during which he instructed Abi-Saab to:

1. Send images of identification documents and bank cards; and

2. Write her name, address, date and PIN for her NAB bank card on an envelope (the envelope) and to send an image of the same.

25. At about 5.09pm, Abi-Saab sent, via WhatsApp, an image of the front of her NSW Drivers Licence.

26. Between about 5.23pm and 5.25pm, Abi-Saab, acting on instruction from the SCO2, sought to consolidate her funds by transferring funds between her accounts.

27. Between about 5.25pm and 5.31pm, the SCO2 sent Abi-Saab messages with the account details of account ending #3931.

28. Between about 5.34pm and 6.27pm, Abi-Saab transferred funds from her own account to account #3931. Abi-Saab provided a screenshot of these transactions to the scam-call operator.

29. Between about 6.51pm and 6.56pm, Abi-Saab sent images of the front and back of her bank card, her licence, and her PIN to the operator.

30. At about 7.34pm, the call with the SCO2 dropped out. Abi-Saab subsequently received a WhatsApp call from a mobile used by the SCO2, during which he stated:

1. There was a need for a "courier of the police" or "someone from the local court house" to attend her residential address to provide a new tax file number and assist her in obtaining new identity documents;

2. The person would be in plain clothes and not carrying any identification;

3. The person would recite the PIN number of Abi-Saab’s credit cards to confirm his identity; and

4. The victim was not to say anything to the person other than to ask them to identify the PIN number.

31. At about 8.04pm, Abi-Saab sent him an image containing the front of her NSW Driver Licence and the front of a Dooleys Member Card in her name.

32. Between about 8.05pm and 8.23pm a number of WhatsApp messages were exchanged between the offender and Chinnam in which the offender was instructed to attend Ms Abi-Saab’s residential address in Denistone NSW.

33. Abi-Saab, acting on earlier instruction from the SCO2, complied with what was required in respect of the envelope. At about 8.29pm, Abi-Saab sent the SCO2 an image of the envelope on which she had written her name, address, date and PIN number for her NAB Visa Card.

34. At about 8.30pm, Abi-Saab sent him an image of her TAFE NSW Student Card.

35. At about 8.40pm, the SCO2 stated, "someone is there now". Abi-Saab exited her Denistone address, while remaining on the telephone, and met the offender on her driveway. The pair exchanged the following words:

Abi-Saab: "Identify the PIN number?"; and

The offender: "one-four-one-eight".

36. Abi-Saab, did not ask the offender any further questions and handed him the envelope containing her NAB Visa Card and her Latitude Infinity Rewards Platinum Visa Card (Latitude Card).

37. At about 8:49pm, the offender withdrew $2,000 from the CBA ATM at Eastwood using Abi-Saab’s bank card. The offender deposited $2,000 into his own account.

38. About 9.05pm on 8 October 2021, the offender transferred $1,800 from his bank account to Chinnam's account. The offender retained $200 for his services.

39. Abi-Saab continued the WhatsApp call with the SCO2, during which:

1. The SCO2 stated someone would attend the Denistone address the following morning to provide new documents and a tax file number;

2. Abi-Saab stated she does not use her Visa cards; and

3. The SCO2 questioned whether the Latitude Card was active and stated there was a need for it to be activated.

40. At about 9.29pm, Abi-Saab contacted Latitude Finance and activated her Latitude Card, which had been issued approximately 20 months prior.

41. Between about 9.36pm and 9.37pm, Abi-Saab exchanged a series of WhatsApp messages with the SCO2, during which Abi-Saab requested an image of her Latitude Card.

42. Between about 9.37pm and 9.41pm, the offender took images of the front and back of the Latitude Card and sent these images to Chinnam.

43. At about 10:20pm, the offender withdrew $1,000 cash from the CBA ATM at Granville using Abi-Saab’s bank card. This transaction was shortly preceded by the following transactions using Abi-Saab’s bank card:

1. On two occasions, the offender used an ATM in CBA Eastwood to request a withdrawal of $2,000. However, the ATM declined the transactions on both occasions.

2. The offender used an ATM in CBA Granville to request a withdrawal of $1,000. However, the ATM declined the transaction.

44. At about 10:27pm, the offender transferred $900 to Chinnam, with payment reference "thnks." The offender retained $100 for his services.

45. Between about 10.38am and 11.15am on 9 October 2021, the offender handed to Thota the Latitude Card.

46. Later that morning the offender sent a series of WhatsApp messages to Thota with an address in Ashfield.

47. On 9 October 2021, Thota used the Latitude Card to purchase four "Coles Myer Gift Cards" to the total value of $2,000. Thota sent images of those gift cards to Chinnam.

48. On 10 October 2021, Chinnam transferred $500 to the offender as a loan.

49. About 7.42pm on 13 October 2021, the offender, transferred $380 to Chinnam with payment reference "thnks bro."

50. About 7.43pm on 13 October 2021, the offender, transferred $120 to Thota, with the description "work".

51. In respect of the victim Amachavadi Lingarajurs Krishne Urs, on 15 November 2021, he was contacted by a scam-call operator and was persuaded to:

1. Provide his bank account details;

2. Transfer $31,216.35 to another person's account; and

3. Place 2 bank cards in his name into an envelope and record the associated PINS.

52. The offender collected this envelope a short time later.

53. On 16 November 2021, the offender used Krishne Urs’ bank cards as follows:

1. At about 4:51pm, the offender used an ATM in CBA Crows Nest to request a withdrawal of $2,000. The ATM declined the transaction.

2. At 5:02pm the offender withdrew $100 from an ATM at CBA Crows Nest;

3. At 6:54pm the offender withdrew $900 from an ATM at CBA Mascot;

4. At 6:56pm the offender withdrew $1,000 from an ATM at CBA Mascot.

54. Sequence 5 is the charge on the s 16BA schedule which is to be taken into account on sentence. The agreed facts in relation to that offence are as follows.

55. On the evening of 8 October 2021, at around the time the offender successfully withdrew $2,000 and later, $1,000 from Abi-Saab’s accounts, he also attempted to withdraw a further total of $3,500 using Abi-Saab’s bank cards. However, these attempted transactions were declined.

56. On the evening of 13 October 2021 the offender exchanged messages with Chinnam over WhatsApp concerning the scam.

57. As a result of the scam, Abi-Saab provided images of identification documents, including her NSW Driver Licence, which was later used by the criminal organisation.

58. Sequence 9 involved two victims. The first victim Tracey Taituha, acting on instructions from a scam-call operator, was persuaded to provide identification documents and bank cards in a box.

59. Between about 11.02am and 11.21am on 22 September 2021, Taituha was seated in her vehicle near her residential address in Roselands, NSW. The offender approached Taituha's vehicle and Taituha handed him a box containing $4,500 in cash and her ANZ bank card, through the passenger side window.

60. At about 11.21am, the offender transferred $2,500 of the $4,500 cash collected from Taituha to Chinnam. He retained $2,000 for his services.

61. On 27 September 2021, the offender communicated with Chinnam over WhatsApp, during which the offender enquired whether there were any more 'jobs' for him. Chinnam responded, 'not yet.'

62. At about 9.00am on 5 October 2021, Taituha answered a call via WhatsApp, from the scam­call operator, during which he stated he was going to deposit twenty-four thousand dollars into her bank account and that it was "going to be coming from George Rukonis from Victoria". The scam-call operator stated that Abi-Saab "will need to do the same process as you have done before".

63. Later that day, Taituha:

1. Used the ATM ANZ Roselands Branch at the location to withdraw $2,000.

2. Attended ANZ Branch, Bankstown Central Shopping Centre, and withdrew $10,000 cash;

3. Attended ANZ Branch, Campsie, but was unable to negotiate a cash withdrawal as the bank was closed;

4. Attended ANZ Branch, Rockdale Plaza, and withdrew $12,000 cash;

5. While in Rockdale purchased foil, a plain A4 envelope, a brown express post box and sticky tape; and

6. Placed $24,000 in the envelope inside the box which she taped.

64. Taituha returned home, where she sat in her vehicle. The offender approached Taituha 's vehicle and Taituha handed the offender the box containing $24,000.

65. At about 12.58pm, the offender transferred a total of $20,001 to Chinnam with payment references "ksu" and "payment from Mr Uday Chintagunta."

66. The second victim, Leutuva Caldwell, acting on instructions from a scam-call operator, gave the offender an envelope containing her bank card, PIN and account details.

67. At about 9.00am on 26 October 2021, Caldwell, received a call from an unidentified male (SCO A), purporting to be from the AFP, during which:

1. SCO A stated he was conducting an investigation as someone had opened up nineteen bank accounts in the name of Caldwell;

2. SCO A requested Caldwell's Medicare Card;

3. Caldwell stated she would not tell him the Medicare Card number as she did not know the person; and

4. SCO A stated he would pass the phone to someone;

5. An unidentified female (SCO B) subsequently stated she would pass the call to a higher police officer to verify who they were; and

6. A second unidentified male (SCO C) stated he would contact Caldwell via WhatsApp.

68. At the direction of SCO C, Caldwell:

1. Sent images of her Medicare card, St George Visa Card, and NSW Drivers Licence to the operator over WhatsApp;

2. Wrote an authorisation letter including her bank details, account balances and PIN, and sent an image of this letter over WhatsApp;

3. Placed these documents in an envelope and sent an image of herself holding this envelope.

69. Between 12.09pm and 12.26pm, on the instructions of Chinnam, the offender attended the vicinity of Caldwell's home. After exchanging the verbal password given to the offender by Chinnam, and Caldwell by SCO 3, Caldwell handed the offender the envelope.

70. On 26 October 2021 the offender used Caldwell’s bank card to purchase eleven $500 gift cards as well as making two purchases of $95.99 and $18.80.

71. As a result of the scam, Caldwell was defrauded a total of $5,702.24 and provided images of identification documents, including her NSW Drivers Licence which was later used by the criminal enterprise.

72. In total, the quantum of the offending amounted to $68,460.04. The offending in Sequence 5 involved an attempt to obtain $3,500.

73. Chinnam departed Australia on 13 February 2022. The offender was identified through examination of phones belonging to Chinnam and was arrested on 1 April 2022 following execution of a search warrant at his home. In an ERISP he told investigating police:-

“a. He first made contact with Chinnam in Melbourne, when responding to an ad for courier services;

b. Chinnam contacted him on WhatsApp;

c. At Chinnam’s direction, he:

i. Collected envelopes from people’s houses, and would be paid between $100 and $200, on four or five occasions. Abi-Saab was one of these occasions;

ii. He withdrew money from the cards he received, deposited the money into his account and transferred it to Chinnam.”

74. Exhibit A included the NSW Police antecedents which demonstrated that the offender had no criminal history in New South Wales.

75. Exhibit A also included a Sentencing Assessment Report (“SAR”) under the hand of Ms H Goody dated 29 August 2023. The author noted that the offender had been residing in Australia since 2018 and had been on a student visa since that time. He held multiple bachelor degrees and was currently studying a Bachelor in Computer Networking.

76. Under the heading “Attitudes”, the author recorded that the offender believed he was taking part in legitimate employment, stating that he perceived it to be a “debt collection” service. She noted that he repeatedly stated that he did not consider his actions as being illegal at the time of the offending and did not think he was committing any crime.

77. The offender had stated that he had worked as a courier and in the hospitality industry which employment was sporadic in relation to COVID-19. He stated that this led him to be “tricked into the offending due to a lucrative offer that appeared to relieve his financial constraints”.

78. The author noted that the offender demonstrated limited insight into the impact of his offending on the victims, stating that they may have felt “cheated”. He was otherwise self-focused on the impact of his offending on himself and his family.

79. The offender was assessed as at a low risk of reoffending and as suitable to undertake community service work.

The offender’s evidence

80. The offender relied on a bundle of documents which became Exhibit 1.1 to 1.5. Exhibit 1.1 was a report from Mr S Borenstein, Psychologist, dated 6 June 2023. The report sets out the offender’s history of being on a student visa in Australia. Prior to COVID-19, the offender worked for 20 hours per week as a courier driver but during the lockdown was not given regular shifts and worked no more than two shifts per week, whereas previously he had worked five which allowed him to pay for his rent, food and tuition fees. The author recorded that in a “state of desperation” the offender replied to an add for a debt collector. The man told him that it was a real job and he was given locations and directions via WhatsApp. He stated that the only time he had contact with the man was when he went to the airport and gave him “all the envelopes” and he left for India. He told Mr Borenstein “I said I never wanted to speak to him again because by that time, I knew it was a scam”.

81. The offender also said that he was requested to purchase gift cards and “after the fourth time a man at Woolworths questioned what I was doing and it was then I realised.”

82. Chinnam had asked the offender whether he had friends who would assist and the offender had a flatmate, Thota, who became involved.

83. Following his arrest, the offender stated he had felt suicidal and that “this has ruined my life”.

84. Mr Borenstein noted that the offender had expressed feelings of guilt, remorse and contrition, that he had a supportive family and that he had not undertaken any psychological treatment or counselling. He had however reported symptoms of depressed mood and in particular suicidal ideation without intent.

85. Following assessment, Mr Borenstein opined that the offender suffered from extremely severe symptoms of depressed mood together with extremely severe symptoms of anxiety. He opined that he had a diagnosis of adjustment disorder with mixed anxiety and depressed mood which was a direct result of his involvement in the offences. He also noted that the offender had cut ties with Chinnam after he realised he was caught up in the scam. He further opined that the risk of reoffending was extremely low.

86. Exhibit 1.2 was a letter of apology from the offender in which he stated that he realised his offending was “so wrong” and he felt shame and remorse for his actions.

87. The offender described going into a depression and having suicidal thoughts whilst in custody. Following his release from custody he got strong support from his family and he has since continued his education and completed a Diploma in Leadership and Management. He further promised not to reoffend and apologised to each and every victim.

88. Exhibit 1.3 was a letter from the offender’s sister attesting to the offender’s character as a “very honest and humble” person who is “both morally upright and socially admirable”. She observed a drastic change in him since he had been charged and described him as “very much depressed”. She further expressed her confidence that he would not reoffend.

89. Exhibit 1.4 was a letter from Mr D Kovvuri who had known the offender from their hometown in India. He described him as a genuine person whose only negative was that he “always trusts people blindly”. He attested that the offender was “very honest and humble in nature” and had expressed regret and remorse for his offending conduct.

90. Exhibit 1.5 was a letter from K M Chivukula who described himself as the offender’s best friend. The offender was described as a “very humble, kind, caring, responsible and friendly person”. He also described the offender as a good student and expressed confidence that he would not reoffend.

The Crown submissions

91. The Crown relied on a thorough and detailed outline of written submissions in which it set out general sentencing principles for money laundering offences, including the following summary from Kim v The Queen [2016] VSCA 238:-

“a. The starting point is to consider where the offence sits in the scheme of offences provided for by div 400 of the Code.

b. Attention must be focussed on the precise circumstances of what the offender did, including the actions which constituted the dealing for the purposes of the offence, the period of time over which the offence was committed, the number of transactions involved, the amount involved in the offending, and the role of the offender in the money laundering arrangement (including whether the offender was the author or instigator of that arrangement, and the degree of authority reposed in the offender in carrying it out).

c. The person who launders money is an important cog in the wheel of organised crime and such conduct warrants severe punishment in which general deterrence is to be given significant weight.

d. The amount of money involved is a highly significant matter and the primary identifier of the maximum penalty for any given offence.

e. Generally speaking, a larger number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount, which may be seen as an isolated offence.

f. It is ordinarily relevant to consider how the money dealt with is proceeds of crime, and the extent of the offender’s belief as to, or knowledge of, how the money is proceeds of crime.

g. However, consideration of the sentence for which the offender may have been liable had he or she been charged with a different offence (in particular, that which generated the proceeds of crime) is a distraction from the sentencing process in respect of the offence charged. In offences against Div 400, that will serve to preclude consideration of the maximum sentence for the ‘predicate offence’.”

92. In assessing the objective seriousness of the offending the Crown submitted that the role of the offender is the most important consideration, relying on R v Ansari (2007) 173 A Crim R 112; [2007] NSWCCA 204 at [123].

93. The Crown also set out the fundamental principle in sentencing a federal offender, namely that the Court must impose a sentence “that is of a severity appropriate in all of the circumstances of the offence”, and set out the following relevant factors pursuant to s 16A of the Crimes Act 1914.

Nature and circumstances of the offences – s 16A(2)(a)

94. The Crown submitted that the value of the money and duration of the offending were significant factors in determining the seriousness of the money laundering offence, relying on R v Huang; R v Siu (2007) 174 A Crim R 370 at [34] – [35]. Here, both offences concerned more than three times the monetary threshold in s 400.6(1) and involved numerous deliberate individual actions by the offender.

95. The role of the offender here involved him acting at the direction of Chinnam. He also referred his friend, Thota, to Chinnam and some of the offending involved the offender directing Thota’s criminal activities. He also arranged payment for those activities to Thota. Whilst the Crown accepted that he was at the lower level of the scheme’s hierarchy, his role with respect to Thota meant that the offender could not be considered to be without agency within the offending structure.

96. The Crown submitted that the characterisation of the offender’s role as at the lower level should not undermine his importance to the overall scheme. The physical acts of collecting cash and other items from the victims and conducting the further transactions thereafter was an essential role in the fraud.

97. By taking money directly from the victims of the fraud, using their bankcards to withdraw further cash amounts or make extensive purchases meant that the offender knew the scale of the fraud upon each victim and this was a high order of knowledge. Whilst the Court would be satisfied beyond reasonable doubt that the offender engaged in the offending for financial reward, the Crown conceded that the reward was not great.

The offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar conduct – s 16A(2)(c)

98. The Crown submitted that the offending took place over the course of 2 months and was a deliberate course of conduct.

Contrition and remorse; a plea of guilty – s 16A(2)(f) and (g)

99. The Crown accepted that the offender had demonstrated some contrition by the timing and fact of his guilty plea. The Crown submitted that pursuant to s 16A(2)(g) the Court must take into account the relevance of the subjective value of the plea as evidence of genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice. Further, the strength of the Crown case must be taken into account, including whether the plea was simply a recognition of the inevitable. Here, the plea was entered at the earliest opportunity, saving the community the expense of a contested trial. The utilitarian value of the plea was therefore high. The Crown submitted that the assessment of the subjective value of the plea should be tempered by the consideration that the plea was entered in the face of a strong Crown case.

Deterrence and need for punishment - s 16A(2)(j) and (ja), s 16A(2)(k)

100. The Crown submitted general deterrence is of particular significance in money laundering cases as such conduct was vital to the success of predicate offences, because it moves the proceeds of crime to third parties and assists in criminal enterprises whilst making their detection more difficult.

Character, antecedents and background of the offender and prospects of rehabilitation – s 16A(2)(m) and (n)

101. The offender was 26 years of age at the time of the offending and is now 29 years old with no criminal history.

The probable effect of any sentence on the person’s family or dependents – s16A(2)(p)

102. There was no evidence of any effect upon the offender’s family.

103. The Crown provided a list of cases involving sentencing for money laundering offences which it conceded were not comparable to the current offending and were of limited assistance other than the distillation of sentencing principles. The Crown noted that there were cases where the offender was sentenced to a term of imprisonment but released forthwith pursuant to s 20(1)(b) of the Crimes Act.

104. The Crown also submitted that ss 21B(1)(a) and (d) and s 16AB(5) empower the Court to make reparation orders in favour of the victims in respect of any loss they had suffered. In making such an order the Court is required to consider the offender’s current financial position. The Crown set out, by way of schedule, the amount of loss suffered by each of the five victims.

105. In her oral submissions, the Crown acknowledged that the offender had expressed remorse for his criminal conduct and that he had low prospects of reoffending. The Crown submitted however that in the offender’s evidence there was a “flavour” of not accepting responsibility for his criminal offending and an element of minimisation thereof. There was a tension between the agreed facts as to his knowledge and his stated belief at the time of the offending.

The offender’s submissions

106. Counsel for the offender also relied on a detailed written outline of submissions in which she conceded the threshold had been crossed pursuant to s 17A of the Crimes Act. However it was submitted that if sentenced to imprisonment, the offender ought to be released forthwith by way of a recognizance release order. In respect of the factors pursuant to s 16A(2) of the Crimes Act, the offender submitted as follows.

Nature and circumstances of the offences - s 16A(2)(a)

107. The offender submitted that the offending was motivated by financial need as opposed to greed, and that his financial gain was quite minimal. He received three payments of $600, $200 and $2,000, totalling $2,800, which was minimal in light of the overarching criminal operation.

108. It was submitted that the offender’s role was at the lower level and that Chinnam was the significant player in the operation. Chinnam had been arrested in Victoria but allowed to depart for India, his phone was seized at the airport and it was through that seizure that police were able to locate the offender.

109. It was submitted that the most significant part of the scam involved scam-call operators convincing victims to hand over their money and have it available for collection. The offender had brought his offending to an end himself once he became fully aware that it was a scam.

Course of conduct – s 16A(2)(c)

110. The offender accepted that the offending involved a course of conduct.

Degree of contrition and plea of guilty – s 16A(2)(f) and (g)

111. The offender submitted that he had clearly expressed remorse and contrition both to Mr Borenstein and in his apology letter, and had expressed insight into the impact of his offending on the victims. Also relevant was that he had ceased the offending of his own volition and that his pleas of guilty were entered at the earliest opportunity and resulted in significant benefit to the community.

Character, antecedents and background of the offender – s 16A(2)(m)

112. The offender had no antecedents and was a person of good character. It was submitted that “in some respects, it can be seen that his character and naivety led him to being involved in the offending”. It was submitted that the offender was, at the time, in dire financial circumstances and that what he initially believed to be genuine work turned out to be a scam.

113. Further, he had been diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood and his time in custody was undoubtedly onerous.

Prospects of rehabilitation – s 16A(2)(n)

114. It was submitted that the offender had excellent prospects of rehabilitation. The author of the SAR assessed him as a low risk of reoffending and Mr Borenstein opined that he was an extremely low risk.

Reparation orders sought by the Crown

115. The offender had limited means which would not be sufficient to repay the amounts sought by the Crown. Further, he was likely to be deported as a result of his offending conduct.

116. The offender submitted that the comparative cases relied on by the Crown all involved criminal conduct markedly more serious than the subject offending. Whilst the threshold in s 17A of the Crimes Act had been crossed, a sentence of severity appropriate in all of the circumstances in this case would be release forthwith pursuant to a recognizance release order.

117. In her oral submissions counsel for the offender noted the concessions made by the Crown as to the low level of objective seriousness of the offending, the small amount of financial benefit to the offender and the significant benefit of his early plea of guilty given the complexity of any trial, including pretrial applications concerning the ERISP and admissions made therein.

118. Counsel rehearsed her submissions relating to the s 21B application made by the Crown for reparation given that the offender himself was in dire financial circumstances and his family in India were also facing financial hardship, meaning that he was not in a position to make reparation. Further, he was not responsible for the entirety of the losses suffered by the victims given the amounts he was paid were fairly minimal.

119. Counsel submitted that custody would be difficult for this offender given the suicidal ideation previously suffered by him and Mr Borenstein’s diagnosis of an Adjustment Disorder. The evidence demonstrated that he had shown insight into his offending conduct and acceptance of responsibility for it.

Determination

120. In determining the objective seriousness of the offending in respect of Sequence 8 I take into account that the offender was at a lower level in the hierarchy of the criminal organisation perpetrating a telecommunications scam in which victims were persuaded to provide personal details, bankcards, identification and PIN numbers which were then collected by the offender. The offender’s role however went beyond mere collection in that under instructions from the principal, Chinnam, he then used the items to withdraw substantial monies from the victims’ back accounts, purchased numerous gift cards and used them to his personal benefit by purchasing food. He then passed on the proceeds of the scam to Chinnam and thus was an important cog in the wheel of what was clearly a highly organised criminal enterprise. In respect of each of the three victims there were numerous transactions in perpetrating the fraud over a two month period.

121. I find the role of the offender facilitating the laundering of the money to be integral to the operation given that he was aware of where the money came from and ensured its delivery to its ultimate destination. The amount of money involved was more than three times the threshold amount of $10,000 for the offence pursuant to s 400.6(1) and on the agreed facts, the offender must have known that it was a fraudulent activity from the outset, or at least shortly thereafter, and he was a willing participant in it. It was also a crime carried out for financial gain and I do not accept the submission made on behalf of the offender that it was out of financial “need” given his family background.

122. I do not accept that the offender believed at any time that he was part of a legitimate “debt collection service”. It was objectively serious offending just below the mid-range for an offence pursuant to s 400.6(1)(b)(i) of the Code which itself is lower in the hierarchy of the legislative scheme outlawing money laundering by the Commonwealth, by reference to the maximum penalty.

123. The objective seriousness of the offending in Sequence 9 must be assessed in a similar light. In this case there were two victims and the offending took place over more than a month and involved an amount of more than three times the threshold sum of $10,000. It too involved numerous transactions involving withdrawals of large amounts of cash, the purchase of numerous gift cards and expenditure on personal expenses. It also was objectively serious offending below the mid-range of objective seriousness for an offence pursuant to s 400.6(1)(b)(i) of the Code.

120. In determining the sentence the Court must impose a sentence of a severity appropriate in all of the circumstances of the offence, pursuant to s 16A(1) of the Crimes Act 1914. I take into account the following relevant matters pursuant to s 16A(2).

The nature and circumstances of the offences – s 16A(2)(a)

125. The nature and circumstances of the offences, and their objective seriousness are outlined above. I find that the offender physically took money directly from the victims of the fraud. He used bankcards he had collected from those victims to withdraw further cash amounts from their accounts and then deposited this cash, paid himself and remitted monies to Chinnam. He also purchased numerous gift cards the benefit of which went to Chinnam. I find that he knew the victims and the scale of the fraud perpetrated upon each victim and I find that this was a high order of knowledge. It was also highly morally culpable conduct carried out with the specific purpose of defrauding the victims.

126. Given that the offender met Chinnam at the airport to hand over envelopes, I do not accept that the offender ceased his criminal activity of his own volition. On 27 September 2021 he had enquired of Chinnam whether there were any more jobs for him.

Other offences required to be taken into account – s 16A(2)(b)

127. I take into account the matter on the s 16BA schedule, namely Sequence 5, an offence pursuant to s 400.7(1)(b)(i) and s 11.1(1) of the Code, namely that between about 8 October 2021 and 11 October 2021 he attempted to deal with money, or other property, which was proceeds of indictable crime and he was reckless as to the fact that the money, or other property, was proceeds of indictable crime and at the time of the attempted dealing the value of the money or other property was $1,000 or more. The agreed facts demonstrate that the sum involved there was $3,500. The offender has admitted his guilt and asked that this matter be taken into account in respect of the sentence imposed on him for Sequence 8 above. Given the circumstances of the offence it was objectively less serious offending, lying towards the bottom of the low range for such an offence. It does however warrant some accumulation in sentence for Sequence 8.

Whether the offences form a course of conduct – s 16A(2)(c)

128. It is clear that the offending formed a course of conduct over a period of two months consisting of a series of criminal acts of the same or similar character, facilitating a sophisticated telecommunications scam by which no doubt gullible and/or vulnerable people were defrauded of substantial sums of money.

The personal circumstances of any victim of the offence – s 16A(2)(d)

129. There is no evidence before me of the personal circumstance of any of the five victims of the offending conduct. However, the Court is entitled to take into account the common knowledge of the ubiquitous use of such scams and notwithstanding widespread publicity as to their notoriety, the fact that either gullible or vulnerable persons in the community continually fall victim to them no doubt as a result of the highly persuasive modus operandi utilised by the perpetrators of the criminal activity.

The offender’s contrition – s 16A(2)(f)

130. I accept that the offender has shown contrition both in his statements to Mr Borenstein, which were not challenged, and in his letter of apology to the court. However I take into account pursuant to s 16A(2)(f)(i) that he has not made reparation for any loss resulting from the offence and that he is unable to do so.

The offender’s plea of guilty – s 16A(2)(g)

131. I accept that the offender has pleaded guilty at the earliest opportunity and has demonstrated remorse for his offending conduct. Notwithstanding that the plea was entered in face of a strong Crown case, there was utilitarian benefit to the community resulting from avoiding a lengthy trial. I therefore propose to allow a utilitarian discount of 25% in respect of the offender’s plea of guilty and the remorse demonstrated therein.

Specific deterrence – s 16A(2)(j)

132. Specific deterrence is important in the sentencing process in that the offender must understand that his offending constituted a serious breach of the laws of Australia and were he to reoffend, there would be even more serious consequences for him.

General deterrence – s 16A(2)(ja)

133. General deterrence is of primary importance in sentencing for money laundering offences. Such offending not only facilitates sophisticated criminal organisations perpetrating criminal scams, but it is also difficult to detect and is perpetrated on vulnerable members of the community. A clear message must be sent that Parliament has proscribed lengthy terms of imprisonment (in this case 10 years imprisonment) for such crimes and that the Courts will impose condign punishment in appropriate cases to deter like minded persons from such activities.

The character, antecedents and background of the offender – s 16A(2)(m)

134. The offender has no previous criminal convictions and is a 29 year old highly educated man from India who was on a student visa for some years prior to the offending. He has completed a number of degrees whilst in Australia and has good family support in India. I have taken into account his previous good character.

Prospects of rehabilitation – s 16A(2)(n)

135. I find that the offender is at a low risk of recidivism and has good prospects of rehabilitation by virtue of the fact of his conviction and sentence for the index offending.

Probable effect of any sentence of imprisonment on the person’s family – s 16A(2)(p)

136. The offender’s family are in India. His only sister is a medical doctor and other than having to financially support the offender there is no evidence before me as to any other impact of any sentence on them.

137. S 17A of the Crimes Act provides the Court shall not pass a sentence of imprisonment on any person for a federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all of the circumstances of the case.

138. It is not in issue that that threshold has been passed and that a sentence of imprisonment is to be imposed on the offender. The offender has sought however, through his counsel, an order that he be released immediately pursuant to a recognizance release order.

139. As outlined above, the sentence imposed must be of a severity appropriate in all of the circumstances of the offences. I have taken into account the maximum penalty imposed by Parliament of 10 years imprisonment for each offence. The maximum penalty is an indication of the seriousness with which Parliament regards such offending, and is a guidepost in the sentencing process. I have also taken into account that both offences occurred within a two month period and that both involved a series of criminal acts so as to perpetrate the fraud on five separate victims, culminating in each case in losses to those victims of three times greater than the threshold limit for each offence.

140. I intend to proceed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) by imposing an aggregate sentence. For the purposes of transparency, the indicative sentences, having regard to the objective seriousness of the offending, his previous good character, the subjective matters outlined above and a 25% utilitarian discount, will be 15 months imprisonment for Sequence 8 and 12 months imprisonment for Sequence 9. In arriving at an aggregate sentence, principles of proportionality and totality must be taken into account. The principle of totality was described by Howie J in Cahyadi v R (2007)168 A Crim R 41; [2007] NSWCCA 1 at [27] as follows:-

"There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

141. Notwithstanding that the index offences took place during the same period of time over two months, given that there were five separate victims and numerous transactions, the sentences should not be wholly concurrent but rather there should be some accumulation in sentence. I have also taken into account in relation to Sequence 8 the matter on the s 16BA schedule, namely Sequence 5.

142. I therefore intend to impose a sentence of 18 months imprisonment on the offender. I have taken into account that the financial gain to the offender was minimal in light of the overarching criminal operation, that the offender has no antecedents, was a person of good character and I accept that it was his naivety which led him to be involved in the offending. I have also had regard to the impact of the COVID pandemic on the offender and people like him who relied on shift work to survive and the financial circumstances that he was placed in. I have also accepted that he is at a low risk of reoffending, has advanced his rehabilitation and now shows insight into his offending conduct and has accepted responsibility for it. I also take into account that the offender served 12 days presentence custody which was onerous for him, giving rise to suicidal ideation and a diagnosis of an Adjustment Disorder by Mr Borenstein.

143. Having regard to all of those matters I intend to order a recognizance release order for the offender’s immediate release.

Orders

144. I hereby order as follows:-

1. You are convicted of the following offences:-

1. Sequence 8, an offence pursuant to s 400.6(1)(b)(i) of the Code – that between about 17 September 2021 and about 16 November 2021 at Sydney in the State of New South Wales, he dealt with money or other property that was, and that he believed to be, proceeds of indictable crime and at the time of the dealing the value of the money or other property was $10,000 or more.

2. Sequence 9, an offence pursuant to s 400.6(1)(b)(i) of the Code – that between about 22 September 2021 and about 26 October 2021 at Sydney in the State of New South Wales, he dealt with money or other property that was, and that he believed to be, proceeds of indictable crime and at the time of the dealing the value of the money or other property was $10,000 or more.

2. I sentence you to an aggregate sentence of 18 months imprisonment.

3. I order a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) for your immediate release upon entering into a recognizance without surety self in the sum of $500 on the following conditions:-

1. That you be of good behaviour for a period of 18 months.

2. That you accept supervision by a probation officer appointed by Community Corrections.

3. That you follow all reasonable directions of your probation officer.

4. That you do not travel interstate or overseas without the written permission of your probation officer.

4. I further direct your passport is not to be returned without the consent of your probation officer and the police.

5. I direct you to report to City Community Corrections within 7 days of today. You must understand that this is a gaol sentence that you are required to serve in the community. If you breach any conditions that are attached to the order, without reasonable cause or excuse, consequences will follow that may include you serving the balance of the term in custody.

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Decision last updated: 20 October 2023