R v Francis Tolentino

[2009] NSWDC 381

CITATION:	R v Francis TOLENTINO [2009] NSWDC 381
JUDGMENT DATE:	9 November 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Mr Tolentino is sentenced to two years imprisonment in respect of each of the four offences, but relased forthwith in accordance with s 20(1)(b) of Crimes Act 1914(Cth).
CATCHWORDS:	CRIMINAL LAW - sentence - dishonestly dealing in personal information - plea of guilty - remorse - threats as mitigating factor - on-going drug issues - custodial sentence - suspended
LEGISLATION CITED:	Criminal Code Act (Cth) s 480.4(1) Crimes Act 1914 (Cth) s 16A(2)(p). s 20(1)(b), s 3ZL
PARTIES:	Regina Francis Tolentino
FILE NUMBER(S):	2009/8229
SOLICITORS:	Director of Public Prosecutions (Cth) Crimlaw (NSW) Pty Ltd

JUDGMENT

1. Francis Tolentino was a young man who was in a vulnerable position. He was vulnerable because of an addiction to drugs. Another person, who was clearly a criminal, took advantage of that vulnerability and convinced Mr Tolentino to supply him with the private information of persons on the databank of the bank that Mr Tolentino worked for.

2. This was discovered and Mr Tolentino was charged with four offences under the Commonwealth Criminal Code Act 1995. Each of the four offences was the same. The offence is called dishonestly dealing in personal financial information and is again s 480.4(1) of the Criminal Code Act. Each of the four offences committed by Mr Tolentino carries a maximum of five years imprisonment, fixed by that Act.

3. It is important in all cases where a judge sentences a person for the judge to set out what the criminal behaviour was so that an assessment can be made of how serious the crime was in the particular case.

4. Mr Tolentino was employed by the Commonwealth Bank of Australia. He had been employed for some years and in the course of his employment had access to the bank’s computer systems including the financial and personal details of the bank’s customers. He was approached by a man whose surname was Ying. Mr Ying asked Mr Tolentino for information from the bank’s computer system. In some instances he named the persons whose information he wanted. It is important in appreciating the nature of the crime to say something of the circumstances in which Mr Ying convinced Mr Tolentino to supply him with the information on the four occasions that he did.

5. Mr Ying was a friend of a friend from Mr Tolentino’s past. Mr Tolentino had a troubled background, which I will refer to in more detail later, but at one stage he mixed with undesirable people and got into the habit of taking illegal drugs. He was approached by Mr Ying some time in 2007 and asked for the information. Mr Tolentino was reluctant to provide the information, understandably because he was concerned for his job, perhaps also because he knew it was the wrong thing to do. Mr Ying made it clear to Mr Tolentino that there would be trouble for Mr Tolentino and his family if Mr Tolentino did not provide the information sought by Mr Ying.

6. Mr Tolentino, who was called by Ms Hampel, who appeared for him, to give evidence, made several attempts to avoid giving the information to Mr Ying. For example, he gave him incorrect information a couple of times, hoping that that would demonstrate that he, Mr Tolentino, was an unreliable source of information, but Mr Ying persevered. On other occasions Mr Tolentino did not answer telephone calls from Mr Ying, but still Mr Ying persevered. Mr Ying threatened Mr Tolentino on some occasions. He made it clear that other persons who had not cooperated with him had been kidnapped and tortured. Mr Ying showed Mr Tolentino a taser weapon which Mr Ying had. In fact Mr Ying said that Mr Tolentino should not say no to Mr Ying’s request because Mr Ying knew where Mr Tolentino worked and where he lived and said “You need to do it”.

7. In the process of supplying the information on the four occasions that he did Mr Tolentino was not offered any money for the information but did take the opportunity to use heroin to which he had been addicted on the occasions that he met up with Mr Ying. Mr Ying too was a heroin addict and made it available to Mr Tolentino. There was, I accept, no agreement, specific agreement between Mr Tolentino and Mr Ying to supply the information in return for heroin but as I said the heroin was used in the context of meeting with Mr Ying to supply the information.

8. The police discovered the leakage of information, not as a result of any confession by Mr Tolentino, but because they executed a search warrant in Queensland and found documents containing the personal information. They then executed a search warrant on Mr Tolentino’s place and found another document containing personal information. All in all four documents were found containing information, such as credit card, personal bank accounts, dates of birth of four specified persons. Mr Tolentino was arrested by agents of the Australian Federal Police and interviewed over two days on 4 and 5 December 2007. He was cooperative in both interviews and supplied details of his own offences and as much information as he could about Mr Ying. Over a year later on Christmas Eve last year a court attendance notice was issued and served on Mr Tolentino, charging him with the four offences that I am sentencing him for. He pleaded guilty in January 2009.

9. In his evidence Mr Tolentino confirmed information contained in a helpful pre-sentence report prepared by the Probation and Parole Service. He had a difficult background. He was born in the Philippines. His parents separated when he was at a young age. His mother emigrated to Australia before he did. He was left with elderly relatives whom he had to look after. At one stage he was kidnapped for some hours. He himself came to Australia when he was about ten years old and lived with his mother and his stepfather. He did not get on well with his stepfather and was the victim of verbal abuse. He left High School in Year 10 and, as I said, started mixing with the wrong people. He commenced using heroin, which he smoked from about the age of sixteen or seventeen and his criminal record reflects the fact that he had a troubled childhood. He is now twenty-five and when he was about sixteen he committed the crimes of larceny and armed robbery for which he was dealt with by the Children’s Court. As an adult his main offences have been summary offences concerning possession of drugs.

10. He has had fairly steady employment since he left school. In fact his best job was probably with the bank from which he was dismissed once his dishonesty had been discovered. He has had other employment since then including over a year with Optus. He has a friend whose father employs him in times of need and he is presently employed by his friend’s father at the father’s business.

11. He has been connected for some eight years now with Maria Hacinas and they have been engaged for some four years. They have two children, including one who is very young. Ms Hacinas to her credit has always supported Mr Tolentino. In fact at one stage he managed to get himself out of his drug habit by attending a rehabilitation centre daily.

12. He expressed remorse and regret for his offences and appreciated the impact which it would have on the persons whose information he disclosed. Unfortunately he slipped back to drug usage after successfully completing the rehabilitation and the offences which I am sentencing him for arose, as I said, from his vulnerability to drug addiction and the persons with whom he mixed. Maria Hacinas is employed part-time with a pathology company and gave evidence of Mr Tolentino’s remorse and of the difficulties that she would have with the children if he were to be sentenced to full-time imprisonment.

13. Despite being charged with these offences, almost a year ago now, Mr Tolentino has once again meddled with illegal drugs. According to the pre-sentence report he has tested positive to opiates and methamphetamines in the middle of this year. Mr Tolentino explained that those occasions were the result of peer pressure and he resorted to drugs when he became depressed. He now has an arrangement where his salary is paid directly into Ms Hacinas’ account so that he has no access to funds. Surprisingly he has not had specific counselling directed to his troubled background, nor apart from the drug rehabilitation course, any recent counselling focused on his drug addiction.

14. The Probation and Parole officer who prepared the helpful report had reservations about Mr Tolentino’s commitment to rehabilitation. Mr Pintamalli in his helpful written and oral submissions emphasised the seriousness of the crimes committed by Mr Tolentino, with particular emphasis on the fact that they involved a breach of trust. He emphasised the importance of general deterrence so far as bank employees are concerned, as well as the importance of the community knowing that breaches of privacy so far as their information is concerned will be punished sternly so that their information will remain protected.

15. Ms Hampel in her helpful submissions emphasised the circumstances in which her client committed the crimes, and put stress on the threats that her client had been subjected to. There was, she said, a significant level of duress. The threat to be kidnapped or at least the reference to another person being kidnapped would have as she said, hit a raw nerve so far as Mr Tolentino was concerned. She acknowledged the need for her client to address his drug addiction and emphasised also the fact that there was no evidence of any specific loss to any victims of the offences. She emphasised also the resistance which her client had originally put up to Mr Ying who was approaching him about committing the offences.

16. I need to assess the objective seriousness of the crimes committed by Mr Tolentino. They do involve as Mr Pintamalli argues, a significant breach of trust. Employees of banks are given custody of information about all of us on the basis that they will not disclose that information. Mr Tolentino breached that trust which was the basis of his employment.

17. On the other hand it was not, I am satisfied, a straight commercial transaction where Mr Tolentino received money for information. Indeed I would not characterise it as receiving drugs for the information. As I said, the drugs were supplied in the context of him re-engaging in the criminal milieu that he had mixed with previously, in particular, Mr Ying it seems was a drug taker himself.

18. Another aspect which mitigates in my opinion the seriousness of this offence is the real fear which I accept Mr Tolentino experienced in the threats which Mr Ying posed to him and to his family. It also mitigates the seriousness of his offending that he made efforts to be an unreliable source of information so that Mr Ying would not persevere in taxing him for what he wanted him to provide. There were also, I am satisfied, fortunately no losses sustained by the persons who had their information disclosed apart from the loss of privacy involved in the fact of committing these offences.

19. The crimes were committed over some months as Mr Pintamalli points out, and they are the sorts of crimes which are difficult to detect. In this case, as I said they were discovered as a result of search warrant. I do not accept that the action of Mr Tolentino involved the deliberate supply of information to a criminal syndicate in the sense that it should be classified in that way.

20. Subjectively, as I have said, Mr Tolentino has acknowledged the seriousness of his offending and is clearly remorseful about what he has done. His plea of guilty and a confession to the police, combined with his supply of information about Mr Ying indicates in my view a clear intention to facilitate the course of justice. Although he has respectable and good character references from persons who know him, these crimes are the sorts of crimes which are committed by persons with a clean record and therefore his good character does not carry as much weight as it might otherwise as Mr Pintamalli correctly argued.

21. His criminal record was mostly as a child and, as an adult, reflects his drug taking habits. His background is a troubled one as I have said, and as the Probation and Parole officer said, he experienced a disordered early childhood and has ongoing drug use issues. The impact of a fulltime custodial sentence on his family would obviously be significant but I am not satisfied that it is a factor which reaches the level of significance required by the authorities for it to be given significant weight.

22. I need to ensure as s 16A(2)(p) of the Commonwealth Crimes Act 1914 provides that Mr Tolentino is adequately punished for the offence. As I said, general deterrence and reassurance of the public is important for offences such as this. I have determined that a custodial sentence is appropriate but I have determined that it should in effect be suspended. Such a sentence in my view would combine the seriousness that the community regards this crime as carrying, but at the same time provide Mr Tolentino with an opportunity to finally get his life back into order as a young man of his age should do.

HIS HONOUR: Now I will just suspend my remarks there because I will just need your assistance Mr Pintamalli and Ms Hampel regarding the nature of the sentence which I impose. Is it s 20(1)(b)?

HAMPEL: Yes your Honour.

HIS HONOUR: That’s it. And so I sentence him to imprisonment but direct that he be released upon giving security--

PINTAMALLI: Request that he be released forthwith pursuant to the reconnaissance release order.

HIS HONOUR: Good.

PINTAMALLI: And then your Honour would begin the process of basically imposing the reconnaissance release order setting a fee for a security, a surety for a period to be of good behaviour for up to five years.

HIS HONOUR: Okay.

PINTAMALLI: And then any conditions that your Honour may or may not wish to place.

HIS HONOUR: I’ll do that. Okay.

PINTAMALLI: And obviously your Honour will have to indicate the date that the reconnaissance commences and the date that it ends.

HIS HONOUR: And I have to specify a sentence as well, don’t I?

PINTAMALLI: Yes you’ll have to specify custodial sentence and you say however for x amount of time, however you will be released forthwith pursuant to the reconnaissance release order, yes.

HIS HONOUR: Yes. And I don’t specify a non-parole period, do I?

PINTAMALLI: No your Honour.

HIS HONOUR: That would occur if he breached the reconnaissance and came back for sentence.

PINTAMALLI: If he comes back and then he’s - were to be convicted for a breach of the reconnaissance order, then yes, that will then trigger--

HIS HONOUR: Thank you. I’ll commence the process and then I might need to just get - you agree with what--

HAMPEL: I agree with that your Honour, yes.

HIS HONOUR: Okay thanks.

23. I regard an appropriate sentence for each of the four charges as two years imprisonment. I propose to deal with the case under s 20 of the Crimes Act 1914.

24. Accordingly, the orders which I make are these. Under s 20(1) of the Crimes Act 1914 (Cth), I convict Mr Tolentino of the four offences of dishonesty dealing in personal financial information, and I sentence him to two years imprisonment in respect of each of the four offences. But I direct by order in accordance with s 20(1)(b) that Mr Tolentino be released forthwith upon giving security forthwith. Now I’ll suspend it there.

HIS HONOUR: With surety or without surety?
PINTAMALLI: Technically, once the individual signs, will have to enter some sort of nominal fee.

HIS HONOUR: A surety?

PINTAMALLI: That can be either a self-surety as it’s called incorrectly, or a surety, which means a security of any amount that your Honour sees fit. That money doesn’t actually--

HIS HONOUR: All right. What’s the usual that would be imposed in a case such--

PINTAMALLI: $500 to $1,000 your Honour is the range that most, it doesn’t actually mean that - to assist the defendant it doesn’t mean he actually has to pay that money.

HIS HONOUR: No, no. I understand.

PINTAMALLI: Yes.

HIS HONOUR: All right I’ll return to the remarks.

25. With a surety in each case of $500 by reconnaissance, the security being that he will comply with the following conditions:

that he will be of good behaviour for two years;

that he will during the period of two years, comply with these conditions;

that he subject himself to supervision by the New South Wales Probation and Parole Service, and accept their reasonable recommendations and directions so far as the following - referral for counselling in relation to unresolved drug issues, random urinalysis to monitor any drug use, referral for intervention in relation to current financial situation, and referral to a psychologist for assessment in relation to childhood issues.

26. For the purpose of that supervision, he is to report to the Blacktown District Office of the Probation and Parole Service on or before Monday 16 November 2009.

Now Mr Pintamalli and Ms Hampel, are there any formal orders I need to--

PINTAMALLI: Just to confirm your Honour that the reconnaissance release order commences on 9/11/2009 and ceases on 8/11/2011.

HIS HONOUR: Thank you.

PINTAMALLI: And also your Honour, the Crown--

HIS HONOUR: Just a moment.

27. The reconnaissance commences today 9 November 2009 and ceases on 8 November 2011. Yes.

PINTAMALLI: The Crown will also be seeking identification orders pursuant to s 3ZL your Honour, either fingerprint or a photograph of the offender.

HAMPEL: That’s not opposed your Honour.

HIS HONOUR: All right, what’s the section and what Act?

PINTAMALLI: Section 3ZL of the Crimes Act your Honour.

HIS HONOUR: Of the Crimes Act?

PINTAMALLI: Yes.

28. Under s 3ZL of the Crimes Act 1914 I order that Mr Tolentino provide identification to the authorities either by fingerprints or photographs.

PINTAMALLI: And your Honour can direct that he go to a particular police station within x amount of time in order to get those.

29. For that purpose, he is to attend Blacktown Police Station on or before Friday 20 November 2009.

HIS HONOUR: Now are there any other formalities I need to attend to?

PINTAMALLI: No your Honour.

HAMPEL: No your Honour.

HIS HONOUR: Ms Hampel?

HAMPEL: No.

HIS HONOUR: Okay.

30. Mr Tolentino, you stand up now. You have got a sentence of imprisonment of two years, but I have directed that you be released upon your promising to be of good behaviour for the next two years and that you be supervised by Probation and Parole, and that you follow their directions and recommendations about your drug taking and getting psychological help to assist you with the issues in your past. Do you understand that?

OFFENDER: I do.

31. All right. If you breach the good behaviour order, for example, if you are found to be taking drugs again, then you will be brought back before me and you are likely to go to gaol. Do you understand that?

OFFENDER: I do.

32. You’ve committed serious crimes. I have described the reasons I have decided not to send you to gaol. You have a strong family, in particular your fiancée is backing you in these circumstances. This is your opportunity to stop this problem with your life to do with drugs. You must do that or you will be back before me or another judge on more serious crimes I expect. You are vulnerable because of your drug taking, you must get rid of that from your life, get back to normal with your family and get your life back on track. If you don’t, you will be even in more serious trouble, you will lose your family because you will be in gaol. Do you understand that? You must take this opportunity. Probation and Parole will help you. They are trained, they are trained to help people like you who have a drug problem, who have personal issues, they know what they are doing. You obviously have issues in your past which you need help with. If you get the right help, things will be a lot easier for you, you’ll be surprised. So let them help you, it will make life a lot easier, do you understand?

OFFENDER: Yes I do.

HIS HONOUR: All right, good luck. Okay, anything else that I need to do?

HAMPEL: No your Honour.

PINTAMALLI: No your Honour.

HIS HONOUR: All right.

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