R v Ngaosri; R v Bevinetto

[2019] NSWDC 547

District Court

New South Wales

Medium Neutral Citation:

R v Ngaosri; R v Bevinetto [2019] NSWDC 547

Hearing dates:

17 July 2019

Date of orders:

17 July 2019

Decision date:

17 July 2019

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

Bevinetto – An aggregate term of imprisonment of four years, seven months with a non-parole period of 2 years, 9 months: at [40].
Ngaosri – A term of imprisonment of 18 months, pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith on the condition that the offender enters into a recognisance: at [41]

Catchwords:

SENTENCING — Aggravating factors — Financial gain — Substantial harm, injury, loss or damage
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Rehabilitation
SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General deterrence — Specific deterrence
SENTENCING — Subjective considerations on sentence — Drug addiction — Hardship

Legislation Cited:

Crime (Sentencing Procedure) Act 1999
Crimes Act 1914 (Cth)
Crimes (Currency) Act 1981 (Cth)
Criminal Code
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited:

DPP v Rohde (1985) 17 A Crim R 166
Muldrock v The Queen (2011) 244 CLR 120
R v Doherty [2016] VCC 1359
R v Gittany [2002] NSWCCA 139
R v Haywood (unreported, NSWDC, Sides DCJ, 20 June 2016)
R v Institoris [2002] NSWCCA 8
R v Institoris (2002) 129 A Crim R 458
R v Meades (unreported, NSWDC, Goldring DCJ, 29 June 2000)
R v Megaloudis [2013] NSWDC 302
R v Nasser [2016] VCC 2033
R v Sabbah (unreported NSWDC, Girdham DCJJ, 31 August 2018)

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

 

Roongtiwa Ngaosri (Offender)

  Robert Bevinetto (Offender)

Representation:

Mr A H Edward (Counsel for Crown)

 

Mr A Chharbra (Counsel for Offender – Bevinetto)

  Mr M Pickin (Counsel for Offender – Ngaosri)

File Number(s):

2017/313689; 2017/245497

Judgment

1. A very sophisticated counterfeiting operation was conducted by Mr Bevinetto while he was living at Five Dock with his partner and co‑offender Ms Ngaosri. It produced a significant quantity of very realistic Australian currency which is almost undetectable as being in any significant way different from legitimate Australian currency. It has led to them appearing for sentence having pleaded guilty at an early opportunity justifying a 25% discount on any term of imprisonment under State or Federal offences.

2. Mr Bevinetto faces three Commonwealth offence, one of possession of counterfeit money under s 9(1) of the Crimes (Currency) Act 1981 (Cth) which carries a maximum of ten years imprisonment, one of uttering counterfeit money under s 7 of the Crimes (Currency) Act 1981 (Cth), which carries a maximum of 12 years imprisonment, and one of making counterfeit money in joint commission with another under s 11.2A(1) of the Criminal Code and s 6 of the Crimes (Currency) Act 1981 (Cth) which carries a maximum of 14 years imprisonment. There are also State offences of possess .57 grams of methylamphetamine under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) carrying a maximum penalty of two years imprisonment, and an offence of possessing ammunition without authorisation in contravention of s 65(3) of the Firearms Act 1996 (NSW), which is subject to a fine.

3. His partner Ms Ngaosri is to be dealt with for one count of making counterfeit money in joint commission with another under s 11.2A(1) of the Criminal Code and s 6 of the Crimes (Currency) Act 1981 (Cth).

4. The common agreed facts summarise that between 11 June and 10 August they jointly made counterfeit $100 notes while residing at Five Dock, a total of $30,100. It was found in a pouch in the rear of the house when he was arrested on 11 August 2017. Police also found the methyl-amphetamine and ammunition which is the subject of the State charges. The ammunition was two rounds of .32 calibre ACP. Ms Ngaosri’s role was limited to trimming the printed counterfeit money.

5. Various materials used to make the counterfeit money and USBs containing the serial numbers and templates for Australian notes for the use in making the counterfeit money were found.

6. A few months prior to the counterfeit money being made Mr Bevinetto uttered counterfeit $50 notes to Metro Storage at Leichhardt in February 2017 and to Douglass Hanly Moir Pathology in March 2017. While on bail for these offences on 20 April 2018 he uttered a counterfeit $100 note to West Ashfield Leagues Club and those three instances are the subject of the uttering count. The major count of making counterfeit money in joint commission with another covers the period between 11 June and 10 August.

7. When police searched the property on 10 August they found a Dell hard drive tower, two large industrial printing machines, rolls of laminate, a cutting mat and blades, a guillotine and other items clearly used in the counterfeiting operation.

8. When police left a business card at the address on 31 July 2017 after their initial visit, he arranged for these items to be moved from Five Dock and moved to a unit at Redhead.

9. When they arrived on 11 August he was arrested and was found with $30,100 of counterfeit $100 notes on him as well as two mobile phones, a glass pipe, the methyl-amphetamine and ammunition.

10. Amongst the items found during the search, was the device with the video file on 6 August, which was played in Court. It depicts Ms Ngaosri sitting at a large guillotine with a large quantity of counterfeit $100 banknotes on top of the guillotine. Another video file of that date depicts her sitting at the guillotine trimming a $100 counterfeit note with fine edge trimmings present.

11. Although that is the only direct evidence of her involvement, I accept the Crown submission, which is not seriously contested by Mr Pickin of counsel for Ms Ngaosri, that her involvement in this operation clearly extended over a greater period than that one particular day within the period covered by the charge.

12. Mr Bevinetto’s record does not entitle him to any leniency. It commences with a receiving charge in 1997, dealt with in the Children’s Court, a number of driving offences and a number of offences of dishonesty which have led to terms of imprisonment with a nine month sentence for a driving offence in 2010 and 2011, fraud offences with a further term of imprisonment of 21 months in 2011 which included a nine month sentence was for possessing unauthorised travel documents.

13. Mr Bevinetto has been in custody since 11 August 2017. He was on bail between 16 October and 1 May 2018 and it is common ground that a term of imprisonment is required and should commence on 22 February 2018. It is unnecessary for me to consider any alternatives to a term of imprisonment for Mr Bevinetto.

14. In a Sentence Assessment Report, he is said to have told the author that he was aware that producing counterfeit money was illegal but he was excited about participating in something creative, and he did not consider the consequences. He justified the offences by stating that his motivation was to finance his eldest daughter’s return from overseas. He said he was using $200 worth of ice per week and that clouded his judgment and led to poor decision making. He had been satisfactorily under Community Corrective Services supervision in 2011, and then again in 2015 when there was a community service order but a breach resulted in no action. He was assessed as being at a medium risk of reoffending.

15. I take account of what he says in his letter of apology and the history contained in the psychiatrist’s report as well as the references which have been tendered on his behalf. I bear in mind the cautions expressed about unadopted and untested histories and the Crown has pointed to some discrepancies in his explanation as being inconsistent with other material.

16. He says that his ex‑partner had taken his daughter illegally overseas to Hong Kong and he was facing the need to finance litigation in Hong Kong to obtain custody or access to his child and he says that he was in a desperate position, magnified by his drug use, that clouded his judgment.

17. He has performed well in custody. There are no adverse entries in his custodial record and there are certificates of positive achievement while in custody.

18. Dr Nielssen diagnosed a substance use disorder and depressive illness, but Mr Chhabra of counsel for the offender sensibly does not suggest that it rises to any causative or Muldrock v The Queen (2011) 244 CLR 120 level of significance.

19. He has two children with his co-offender, one is 22 months old and one is three months old, and she was conceived while he was on bail. I take account of the reference from his mother who recognises the bad choices that he has made, but recounts his regret at being involved in this offending. It is clear that he has significant family support as illustrated by the reference from his mother and his sister, his grandmother, uncle and aunt. Documents have been tendered in relation to the custody proceedings in Hong Kong. There is no challenge from the Crown to the proposition that that is a factor to be taken into account as motivating his conduct.

20. Ms Ngaosri has no criminal record. She is a native of Thailand. The Sentence Assessment Report taken through a Thai interpreter notes that she has regular contact with her parents, she is unemployed and she is financially supported by her partner’s mother and grandmother.

21. Mr Pickin wisely does not rely upon an assertion in her report that she was unaware at the time of the offence that her actions were fraudulent. She did have some insight and acknowledged that her offence would have a negative impact on the economy. She was assessed as being a low risk of reoffending.

22. She has expressed regret and apologised in a detailed letter to the Court. She met Mr Bevinetto when she was 18, he was her first partner and she moved in with him five months after they met. Mr Bevinetto’s mother has also written a favourable reference of her and speaks of the obviously close bond between her and her children and the very significant effect that it would have upon her children if she were to be incarcerated.

23. I take account of a number of references from her mother and cousins and sister-in-law. She has undertaken some study in an attempt to improve her English while in Australia and obtain other qualifications.

24. The Crown’s helpful written submissions accurately summarise the matters to be taken into account under Pt 1B of the Crimes Act 1914 (Cth) for the Commonwealth offences and the purposes of sentencing to be borne in mind in sentencing for the State offences for Mr Bevinetto.

25. I take account of the serious way in which the Courts have viewed counterfeiting offences in cases such as DPP v Rohde (1985) 17 A Crim R 166 and R v Institoris (2002) 129 A Crim R 458 as set out in the Crown submissions.

26. As to objective gravity of the conduct in relation to the Commonwealth offences, the amount of money and the quality of the currency has been noted and it is an agreed fact that the notes fell into the professional level classification, at the highest of three categories used for evaluating the quality of counterfeit currency. It is also agreed that the manufacturing process involved industrial equipment and materials, and they were produced using specialised equipment, using specific skills and knowledge.

27. Those agreed facts are taken into account in assessing objective gravity as well as Mr Bevinetto’s role as a principal, his motivation being financial gain and his attempts to avoid detection in relocating the equipment after becoming aware that the police had attended.

28. The offences were clearly part of a wide ranging course of conduct, including purchasing the equipment, the establishing of premises to store them, development of counterfeiting expertise, operating the equipment to produce the counterfeit currency and arranging for the co-offender to assist him.

29. A substantial quantity of counterfeit currency was produced and he also uttered a total of $550 in counterfeit currency. A significant deceit was practiced on the community by the production of these counterfeit notes. They have the potential to destroy public confidence in the currency and cause loss to innocent people. As Brooking J said in DPP v Rohde (1985) 17 A Crim R 166,

“an insidious consequence of the manufacture of false currency is that it encourages innocents to become criminals themselves by uttering notes they realise are false to pass their loss onto another innocent, and it has a significant impact on the Australian economy at large because it undermines confidence in the national currency.”

30. While the plea of guilty is an indication of contrition there has also been, as I have referred to, expressions of contrition and remorse which I take into account. I take account of the need for specific deterrence, particularly against the background of the offender’s record for offences of dishonesty. The need for adequate punishment requires a significant term of imprisonment to be imposed and that is not contested by Mr Chhabra. His prospects of rehabilitation are good given the good conduct while in custody and the material indicating the family support that he has.

31. Both counsel have referred to a very limited number of supposedly comparable cases, including R v Sabbah (unreported NSWDC, Girdham DCJJ, 31 August 2018), R v Haywood (unreported, NSWDC, Sides DCJ, 20 June 2016), R v Doherty [2016] VCC 1359, R v Nasser [2016] VCC 2033, R v Megaloudis [2013] NSWDC 302, R v Gittany [2002] NSWCCA 139 and R v Institoris [2002] NSWCCA 8 and R v Meades (unreported, NSWDC, Goldring DCJ, 29 June 2000) which have been summarised by the Crown in a helpful schedule.

32. As to the State offence, the Crown concedes there is no evidence that he possessed a firearm but possession of ammunition is a serious offence and the possession of methyl-amphetamine is consistent with his acknowledged drug habit. It is also necessary to mark the Court’s approbation by way of convictions for both of those cases. However in the light of the sentence that I will impose for the Commonwealth offences I think it appropriate to deal with both of those under s 10A of the Crime (Sentencing Procedure) Act 1999.

33. The constellation of factors as to objective gravity to which I have referred in the Crown submissions support Mr Chhabra’s concession that the objective seriousness of the principal offending is mid-range. He relies on a number of matters of a subjective nature going to the question of specific deterrence to which I have already referred, namely, the inability to obtain custody of his child and the necessity to resort to litigation, the feelings of remorse and regret that he was not there for the birth of his second child, and the feeling that he has dumped his partner with the care of two children and there is the burden of the real risk of his partner being deported. The prospect of her deportation is not a matter that can be taken into account in my sentence for her but his knowledge of that fact is a legitimate matter to take into account.

34. He clearly concedes financial motivation as being relevant and ultimately Mr Chhabra submission was that the time that he has served to date is in excess of half of what an appropriate non-parole period should be. I take into account the principles as to the appropriate length of any non-parole period which are usually set out in the Commonwealth’s written submissions and I will impose a non-parole period that is appropriate to the gravity of the crime.

35. In relation to Ms Ngaosri, the Crown’s submissions also set out the general principles in relation to Commonwealth sentencing and sentencing for counterfeiting cases.

36. As I have indicated I accept that her role extended beyond what was shown on 6 August of her using the guillotine to trim counterfeit notes. There were also pictures of her with a UV printer in the background on 13 July 2017 and she was involved in what I have already described as a sophisticated counterfeiting operation producing very professional level counterfeit currency.

37. The same matters in relation to the seriousness of the consequences of counterfeiting apply in this case as has already been referred to in relation to Mr Bevinetto.

38. The Crown submissions were prepared in advance of receipt of material from the offender, however there was no challenge to the assertion that her prospects of rehabilitation and her risk of reoffending are favourable and that there is a clear basis for a finding significant hardship to the offender’s family or dependents within the meaning of s 16A(2)(p) of the Crimes Act1914 (Cth).

39. Ultimately the Crown did not contest Mr Pickin’s submission that a disposition of the case by imposition of a term of imprisonment but to be released forthwith was within an appropriate discretionary range.

40. In relation to Mr Bevinetto, the orders that I make are:

1. The offender is convicted of each offence.

2. I impose an aggregate sentence of imprisonment of 4 years, 7 months, to commence on 22 February 2018.

3. I impose a non-parole period of 2 years, 9 months, expiring on 21 November 2020.

4. The indicative sentences are:

1. 002 – 2 years;

2. 007 – 2 years;

3. 010 – 4 years.

004 Possess prohibited drug (NSW)

(5) Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.

005 Possess ammunition w/o holding licence/permit/authority (NSW)

(6) Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 the offender is convicted of the offence and no further penalty is imposed.

DESTRUCTION ORDERS

1. I make destruction orders, by consent, in relation to the equipment/software/data involved in the production of counterfeit currency.

41. In relation to Ms Ngaosri, the orders that I make:

1. The offender is convicted of the offence.

2. I impose a sentence of imprisonment of 18 months to commence on 17 July 2019 and expiring on 17 January 2021.

3. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:

1. The offender is to be of good behaviour for 18 months.

Note – Further destruction orders were, made in Chambers for the destruction of the currency

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 09 October 2019