R v Thota

[2024] NSWDC 48

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Thota [2024] NSWDC 48

Hearing dates:

9 February 2024

Date of orders:

1 March 2024

Decision date:

01 March 2024

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Custodial sentence with recognizance. Release order to take effect immediately. For orders see [92].

Catchwords:

CRIME – deal with money proceeds of indictable crime – give false and misleading information to a reporting entity.

Legislation Cited:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995

Cases Cited:

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

Green v The Queen (2011) 244 CLR 462

Kim v The Queen 2016 [VSCA] 238

R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204

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

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (the Crown)
Druga Hemanth Thota (the offender)

Representation:

Counsel:
Ms C Akthar (the Crown)

Solicitor:
Mr Lewis (the offender)

File Number(s):

2022/93762

remarks on sentence

1. Druga Hemanth Thota is to be sentenced in respect of the following three offences to which he has pleaded guilty:-

Sequence 4 – Between about 16 March 2022 and about 18 March 2022 at Sydney in the State of New South Wales, he dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of an indictable crime and at the time of the dealing the value of the money or other property was less than $100,000.

This is an offence pursuant to s 400.9 (1A) of the Criminal Code Act (Cth) (“the Code”). The maximum penalty for the offence is imprisonment for 2 years, or 120 penalty units, or both.

Sequence 38 – On or about 9 October 2021 at Sydney in the State of New South Wales, he dealt with money or other property that 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 dealing the value of the money or other property was $1,000 or more.

This is an offence pursuant to s 400.7(2) of the Code. The maximum penalty for the offence is imprisonment for 2 years, or 120 penalty units, or both.

Sequence 40 – Between about 22 February 2022 and about 26 March 2022 at Sydney in the State of New South Wales, he gave information to a reporting entity knowing that the information was false or misleading, and that information was given or purportedly given under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) or a provision of the Anti-Money Laundering and Counter-Terrorism Financial Rules.

This is an offence pursuant s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The maximum penalty for this offence is imprisonment for 10 years, or 10,000 penalty units, or both.

2. There are two matters to be dealt with on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth):-

Sequence 39 – On or about 9 October 2021 at Sydney in the State of New South Wales he attempted to deal with money or property that 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.

This is an offence pursuant to s 400.7(2) and s 11.1(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 2 years, or 120 penalty units, or both.

This offence is to be taken into account on sentence in respect of Count 38 above.

Sequence 41 – On about 13 March 2022 at Sydney in the State of New South Wales, he possessed identification information, with the intention that any person would use the identification information to engage in conduct, being conduct which constituted an offence against s 372.1(1) of the Criminal Code (Cth).

This is an offence pursuant to s 372.2(1) of the Criminal Code. The maximum penalty for this offence is imprisonment for 3 years.

This offence is attached to Sequence 40 above.

3. The offender has admitted his guilt in respect of Sequences 39 and 41 and has asked that those matters be taken into account on sentence for the index charges.

4. The offences occurred between 9 October 2021 and 26 March 2022. The offender was arrested on 2 April 2022 and spent 24 days in custody between 2 April and 26 April 2022.

5. A co-offender, Uday Chintagunta was sentenced by me on 20 October 2023 for two offences pursuant to s 400.6(1)(b)(i) of the Criminal Code (Cth). On one of those offences a further charge was taken into account on a schedule pursuant to 16BA of the Crimes Act 1914 (Cth), being an offence pursuant to
   s 400.7(1)(b)(i) and s 11.1(1) of the Code. Principles of parity in sentencing therefore are to apply in sentencing this offender.

The sentence hearing

6. The sentence hearing took on 9 February 2024. The Commonwealth Crown Sentence Summary became Exhibit A. It contained a statement of agreed facts which may be summarised as follows.

7. The offender was at the time of the offending on a bridging visa while his application for a post-study visa was being considered. He was employed at a Woolworths distribution centre and had no prior criminal history.

8. The offender and co-offender, Chintagunta had lived together for some time at various addresses. The offender was born in August 1995 and was an Indian national. He was introduced by Chintagunta to Prudvi Raj Chinnam who was the principal in what was a telecommunications scam. The offender contacted Chinnam over WhatsApp.

9. Sequence 38 involved dealing with proceeds of indictable crime greater than $1,000. On 9 October 2021 Chintagunta provided the offender with a visa card obtained from the victim of a telecommunications scam, Ms Joanne Abi-Saab. The offender used this visa card to purchase four gift cards, each with a value of $500, to a total value of $2,000. He attempted to use the visa card in six subsequent transactions to a total of $1,661 however these transactions were declined. This conduct constituted the offence in Sequence 39 on the s16BA Schedule.

10. The offender sent the images of the four gift cards, with the scratch panel removed to reveal the PIN codes required for their use to Chinnam via WhatsApp. In doing so, the offender facilitated the transfer of the proceeds of the crime to Chinnam.

11. The offender and Chinnam communicated via messages on WhatsApp. On 22 October 2021, the offender actively sought further involvement in Chinnam’s criminal activity. Sequence 40 involved the offender between 22 February and 26 March 2022 giving false or misleading information to various banking entities using fraudulently obtained personal information of three victims of the criminal activity, falsely representing that they were persons who applied to open various bank accounts, and that they resided at an address in Rosehill.

12. In respect of the first of those victims, Fuamatu, the offender falsely subscribed to a Lebara pre-paid telecommunications service and at the same time created a false email account in that persons name. He used the falsely subscribed phone service and email to successfully apply for two bank accounts to be created in the name of the victim with a bank.

13. On 23 February 2022 the offender successfully used the falsely subscribed phone service and email to apply for two further bank accounts in the victim’s name with another bank.

14. On 24 February 2022 the offender successfully used the falsely subscribed phone service and email to apply for another bank account in the victim’s name at WorldRemit Pty Ltd.

15. On 16 March 2022 the offender successfully used the same falsely subscribed phone service and email to apply for another account in the victim’s name with Wise.

16. On 20 March 2022 the offender successfully used the same falsely subscribed phone service and email to apply for two bank accounts to be created in the victim’s name with another bank. Around the same date he also used the information to successfully apply for two further bank accounts with another bank and a building society.

17. On 24 March 2022 the offender gave the same falsely subscribed phone service and email to apply for a bank account to be opened in the victim’s name with ING, however this application was unsuccessful.

18. In relation to the second victim, Saab, the offender registered a telecommunications service in her name with the same false address at Rosehill. On 13 March 2022 he also registered a false email address which was added as an account on his phone. On 13 March 2022 the offender used this information and Saab’s personal information to successfully apply for bank accounts to be opened at two banks in her name.

19. In relation to the third victim, Stallard, the offender on 23 March 2022 used the telecommunications service in the name of Sulu Fuamatu, the false email address of Ms Saab and Stallard’s personal information to successfully apply for a bank account to be opened. On 24 March 2022 he falsely registered a telecommunications service in the name of the victim Stallard. The same false address at Rosehill was given for this service. The offender also registered a false email address in the victim’s name which was added to his phone.

20. On the same day the offender used this information and Stallard’s personal information to successfully apply for three bank accounts to be opened with three different banks.

21. On 25 March 2022 the offender used the same falsely obtained information to apply for an account to be opened in the victim’s name with ING bank, however this application was unsuccessful.

22. On 26 March 2022 the offender used the same information and Stallard’s personal details to successfully open three further bank accounts with three different banks.

23. Between 24 March and about 26 March 2022 the offender used the same information to successfully apply for a bank account to be opened with another bank. The offender lived at the false address in Unit 4. The address given was Unit 3 and the bank cards were sent to Unit 3 which was a vacant apartment. Seven of these bank cards were located in the offender’s possession.

24. Sequence 4, deal with suspected proceeds of indictable crime less than $100,000 involved the offender between 16 and 18 March 2022 withdrawing cash and making purchases using the bank account he had fraudulently opened in the name of the victim Fuamatu in Sequence 40. There were eight separate transactions, three of which involved the withdrawal of $1,000 in cash from an ATM at Granville and five concerned purchases made at Officeworks Auburn. In three of those transactions the offender purchased a total of four Apple iPhones.

25. On 19 March 2022 the offender and Chinnam exchange messages on WhatsApp concerning opening a further fraudulent bank account and selling the Apple iPhone. Those communications continued on 20 March 2022 during which Chinnam directed the offender to sell the mobile phones. On 20 March 2022 the offender transferred $2,600 to Chinnam’s account. They continued to message each other on 21 March 2022 and on the same day the offender sent to Chinnam details of the number of fraudulently opened bank accounts. On 23 March 2022 Chinnam sent to the offender the image of a drivers licence in the name of Stallard and on the same day the offender forwarded details to Chinnam of a bank account he established in Stallard’s name.

26. On 25 March 2022 the offender fraudulently opened four accounts in Stallard’s name and reported this to Chinnam who responded by directing the offender to open more than 15 accounts, to which the offender replied “Ok I’m trying bro”. Between 25 March and 31 March 2022 the offender continued to provide details of bank accounts he had fraudulently opened to Chinnam.

27. The total sums of money involved in the offending was as follows:-

Sequence 38 – On about 9 October 2021 from victim Abi-Saab $2,000.

Sequence 4 – Between about 16 March 2022 and 18 March 2022 victim Fuamatu $11,971.65.

Total – $13,971.65.

Schedule 16BA – On about 9 October 2021 victim Abi-Saab $1,661.

28. The offender and Chintagunta were arrested on 1 April 2022. The offender participated in an interview where he told investigating officers under caution:-

a. He had known Chintagunta for 6 years;

b. He has never met Chinnam in person and was introduced to him by Chintagunta on a WhatsApp call;

c. Chinnam asked him to purchase gift cards via a WhatsApp call;

d. Chinnam told him not to buy more than $2,000 worth of gift cards in one place;

e. He thought it was weird that Chinnam asked him to take photos of the gift cards and PIN, send to Chinnam then throw the gift cards in the rubbish;

f. He did not read who the bank card in his possession belonged to;

g. He asked Chinnam for jobs in exchange for money;

h. He had never possessed bank cards in someone else’s name;

i. He thought was he was doing was wrong;

j. He did not care what Chinnam was doing so long as he was being paid;

k. He had not yet received any money from Chinnam;

l. He does not know anyone who he thinks may be involved in scamming.

29. Exhibit B was a Sentencing Assessment Report under the hand of Ms J Muscatello dated 10 October 2023. The author noted that the offender had completed higher education through the Victorian Institute of Technology and Aditya College of Engineering. Under the heading “Attitude to offending” the author stated that the offender considered his actions were an appropriate way for him to obtain funds to meet his financial commitments. He did not question the illegality of his behaviour as he did not consider that the co-offender would involve him in illegal activity. He was at the time struggling with competing financial priorities which consisted of his living expenses, study costs, his immigration application and assisting his family in India.

30. Under the heading “Insight into impact of offending” the offender recognised the victim’s may have experienced financial hardship because of his actions. He was assessed as a low risk of re-offending. He was also assessed as suitable to undertake community service work.

The offender’s evidence

31. The offender relied on a bundle of documents which became Exhibit 1.1 to 1.4. Exhibit 1.1 was a report from Mr A Diment, Psychologist dated 1 September 2023. Mr Diment interviewed the offender on 22 August 2023 for approximately two hours. He took a history of the offender’s family life in India where he completed his schooling and also a Bachelor Degree in Computer Science at university. He then worked as a software engineer for about 2 years and came to Australia in 2019 as a student to do a Master’s degree in IT at the Victorian Institute of Technology, Sydney campus. He obtained work at a Woolworths distribution centre however COVID-19 made things financially a lot harder for him.

32. The author noted that the offender had no past history of psychiatric or psychological treatment but reported a range of symptoms of anxiety and depression as a result of the present proceedings.

33. In respect of the index offending, the offender gave a history of going through a difficult adjustment when he came to Australia to live. However he lived with his childhood friend, Chintagunta, and trusted him completely. He was living with the co-offender in 2019 and when COVID-19 came he had been sending money to his family in India which was weighing heavily on him. The offender reported that the co-offender told him he wanted to help a mutual friend and in October 2021 asked him to do a favour as a result of which he used a bank card to buy gift cards. The author reported that the offender stated that at the time he did not realise the bank card was stolen and when the co-offender said it would be alright, he believed him.

34. The offender stated, “I’m very sorry for my part in all of this. I do regret this very much - not just for me but for my parents and sister too. They are very worried and upset about me. I have ruined my dreams of a good career and future life – and having my own family – after working and studying so hard all those years. I was suicidal after my arrest but I thought of my parents and wouldn’t do that. I have no excuses for all this and I regret the trouble I caused the victims too.”

35. Following psychological assessment, the offender was assessed within the severe range for clinical anxiety and in the moderate range for clinical depression.

36. Mr Diment opined that the offender was suffering from persistent depressive disorder with anxiety and experiencing a degree of traumatic symptomatology. He had an overall impression of the offender being a somewhat naïve and socially immature person who had trusted the co-offender. He set out a treatment plan involving regular mental health checks and face to face counselling.

37. Exhibit 1.2 comprised five testimonials from persons known to the offender which attested to him being a hardworking, loyal person who was highly committed to his education and family responsibilities. Each was aware of the index offences and reported the offender’s remorse expressed to them for his offending and the impact it had on him. They also attest to his good character, the support he has given his family and expressed confidence that he will not reoffend.

38. Exhibit 1.3 comprises the offender’s academic qualifications. He was awarded a Master of Information Technology and Systems (MITS) which he completed on 22 July 2021.

39. Exhibit 1.4 is a Police Clearance Certificate issued by the Government of India certifying that there is no adverse information against the offender which would render him ineligible for education/research for the Commonwealth of Australia.

40. Exhibit 2 was a letter from social worker Ms Kodi dated 5 February 2024. Ms Kodi reported that since November 2023 the offender had been treated for anxiety and depression resulting from the present proceedings. Ms Kodi set out his history as above and opined that he had developed serious symptoms of PTSD. He had been traumatised whilst in custody where he was bullied and threatened by other inmates and she had commenced trauma counselling and conversational model psychotherapy.

The Crown submissions

41. The Crown set out general principles for money laundering offences, as summarised Kim v The Queen 2016 [VSCA] 238 as follows:

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

2.   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).

3.   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.

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

5.   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.

6.   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.

7. 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’.

42. The Crown also referred to R v Ansari (2007) 70 NSWLR 89; [2007] NSWCCA 204; where the Court referred at [123] to the role of the offender in a money laundering offence as the most important consideration in sentencing.

43. The Crown also set out principles for sentencing for Commonwealth offences which are not controversial. Section 16A(1) of the Crimes Act provides that the court must impose a sentence “that is of a severity appropriate in all the circumstances of the offence” and s 16A (2) of the Act sets out a non-exhaustive list of factors to be taken into account. Section 17A(1) of the Crimes Act provides that a court may only impose a sentence of imprisonment if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all of the circumstances.

44. The Crown submitted that the following are relevant sentencing factors. First, pursuant to s16A(2)(a), a critical consideration is to determine what the offender actually did having specific regard to the time period involved, the value of the money, the role of the offender and their state of mind, and whether there was any financial gain.

45. The Crown submitted that the most serious index offence was sequence 40. This charge reflected the offender’s use of identification information to open more than a dozen bank accounts in the name of the three victims in furtherance of a criminal enterprise. The s16BA offence demonstrated that the offence was not isolated, underscoring the need for both general and specific deterrence.

46. The Crown submitted that the amount of money involved was a highly significant matter, referring to R v Huang; R v Siu (2007) 174 A Crim R 370, given the hierarchy of money laundering offences established in the legislation. Sequence 38, an offence contrary to s 400.7(2) is lower in the hierarchy by reference to the maximum penalty. The Crown submitted the offence involved numerous individual actions by the accused and that the recklessness involved was of a high order. Further, the attempted offending on the s16BA Schedule offence to sequence 38 increased the need for general and specific deterrence.

47. In assessing the role of the offender, the Crown noted that the offender was referred to the criminal enterprise by the co-offender Chintagunta who had been recruited by Chinnam. The co-offender also arranged for payment to the offender for his criminal conduct. The Crown accepted the offender was at a lower end level of the scheme’s hierarchy in that he was engaged in the dealing at the direction of others. This however did not undermine his importance to the overall scheme. The offender had actively sought further work from Chinnam and the pace of his activity demonstrated that his contribution to the enterprise was substantial. With respect to the offender’s state of mind, he told police that he thought what he was doing was wrong, that he did not care what Chinnam was doing so long as he was being paid which demonstrated the high order of his recklessness. The Crown submitted that the court would be satisfied beyond reasonable doubt that he engaged in the offending for some financial reward. The Crown conceded however that the reward was unlikely to be great.

48. Pursuant to s16(2)(c) it was clear that the offending consisted of a series of criminal acts which took place between September 2021 and March 2022. It was only ceased upon the offender’s arrest on 1 April 2022.

49. In respect of the offender’s contrition and remorse pursuant to s16A(2)(f) and (g) the Crown accepted that he had demonstrated some contrition by the timing of his guilty plea which was entered at the earliest opportunity. In respect of
    s16A(2)(j) and (ja), the Crown submitted there was a need for emphasis on general deterrence in sentencing for money laundering offences. Such criminal conduct was vital to the success of other criminal ventures, moving the proceeds of crime, assisting such criminal enterprises and making their detection more difficult.

50. In respect of s16A(2)(m) and (n), the Crown noted that the offender was 26 years old at the time of the offending and is now 28 years with no criminal history.

51. The Crown advocated that the only appropriate sentence is one of full-time imprisonment. The offender having paid compensation there was no application for reparation by the Crown.

52. In her oral submissions, the Crown submitted that the remorse and guilt expressed by the offender had been focused on himself and the impact on his family in India rather than the adverse impact on the victims, however the fact of his payment of compensation was an important consideration.

53. In relation to the principle of parity the Crown submitted that the offender should not attract a more severe penalty than the co-offender. The Crown noted however that the offending in Count 40 was not an offence upon which the co-offender was sentenced.

Submissions on behalf of the offender

54. The solicitor for the offender relied on a thorough written outline of submissions in which the role of the offender as reflected in the agreed facts was set out in some detail.

55. The offender accepted that each of the offences formed part of the course of conduct consisting of a series of criminal acts of the same or similar character.

56. It was submitted that the offender had shown contrition for the offence by making reparation and relied on the report of Mr Diment, summarised above, in which the offender had expressed contrition, insight into the harm caused and remorse for his offending conduct.

57. It was submitted that the offender should receive the maximum possible discount for his early pleas of guilty by which he had accepted responsibility for his wrongdoing and a willingness to facilitate the course of justice.

58. It was submitted the court would take into account that the offender had cooperated with law enforcement agencies pursuant to s16A(2). He voluntarily participated in an electronically recorded interview and made appropriate concessions.

59. It was submitted the offender had no criminal history and was suffering a persistent depressive disorder with anxiety resulting from the consequences of his offending. It was submitted that this was likely to make any custodial sentence more onerous for him.

60. Pursuant to s16A(2)(n) it was submitted that the court could conclude safely that the offender has good prospects of rehabilitation and is unlikely to reoffend. The author of the sentencing assessment report had assessed him at a low risk of reoffending.

61. Pursuant to s16A(2)(p) it was submitted that the offender’s mother would be adversely affected if the offender was sentenced to full time custody as he sends money back to India to pay for his mother’s medical treatment and general expenses.

62. The offender submitted there was very little need for specific deterrence given the impact post-arrest custody of twenty-four days had on the offender. It was accepted that general deterrence has a role to play in an appropriate sentence to be imposed on the offender.

63. The offender submitted that if a custodial sentence is imposed then orders should be made to allow the offender to serve the entirety of that sentence in the community. It was submitted that the overall offending of the co-offender was more serious than that of the offender who had a limited role in the criminal enterprise which took place over a short period of time.

64. In his oral submissions the solicitor for the offender noted the passage from Mr Diment’s report outlined above in which the offender had expressed empathy for the victims.

65. It was also noted that notwithstanding the seriousness of the offending, the conduct that involved opening bank accounts had been facilitated by the relevant financial institutions making it easy to do so. This was relevant to the application of the principle of general deterrence in sentencing. The offender rehearsed his submissions in relation to the application of specific deterrence being of less importance given it is unlikely this offender would reoffend.

Determination

66. In determining the objective seriousness of the offending in respect of Sequence 4 I note that the offence pursuant to s400.9 (1A) of the Code sits low in the scheme of offences provided for by Division 400 of the Code. The offender between 16 and 18 March 2022 withdrew cash and made purchases using a bank account he had fraudulently opened in the name of the victim subject of Sequence 40. There were three withdrawals of $1,000 in cash from an ATM and five purchases made at Officeworks Auburn, in three of which the offender purchased a total of four Apple iPhones. The offender then proceeded to sell the mobile phones at Chinnam’s direction and transferred the proceeds from the sales to Chinnam’s account. The total sum of money involved in the offending was the sum of $11,971.65.

67. Whilst this constituted serious offending in which the offender facilitated the laundering of money in which the offender was a willing participant the objective seriousness of the offending fell in the lower range of objective seriousness for an offence pursuant to s400.9 (1A) of the Criminal Code.

68. Sequence 38 involved a breach of s400.7(2) of the Code which offence again sits low in the scheme of money laundering offences provided for by Division 400 of the Code. The offender was provided with a Visa card obtained by the co-offender from the victim Abi-Saab which he used to purchase four gift cards to the value of $2,000 and attempted to use the card in respect of 6 subsequent transactions which were declined. He facilitated the transfer of the proceeds to Chinnam by sending images of the cards with the scratch panel removed to reveal PIN code for their use. The objective seriousness of the offending fell at the low end of the range of objective seriousness for an offence pursuant to
    s400.7(2) of the Code.

69. The offending in Sequence 40 took place between 22 February and 26 March 2022. It involved the offender giving false or misleading information to various banking entities, using fraudulently obtained personal information of three victims of the telecommunications scam and falsely representing the persons who applied for various bank accounts. For each application he provided a false address. The offender used falsely subscribed phone service details and false email accounts to open numerous bank and financial accounts during that period for the three victims and obtained bank cards from those institutions which were forwarded to a false postal address adjacent to his own residence. Given the length of time over which the offending took place, and the number of transactions, having regard to the manner in which this facilitated the telecommunications scam it fell in the middle of the low range for the an offence pursuant to s136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act (2006), which covers a broad range of offending by way of the provision of false and misleading information.

70. In determining the sentence, the court must impose a sentence of severity appropriate in all of the circumstances of the offending, pursuant to s 16(A)(1) of the Crimes Act 1914. I take into account the following relevant matters pursuant to s16A (2).

The nature and circumstances of the offences - s16A(2)(a)

71. The nature and circumstances of the offending and its objective seriousness are outlined above. The defendant used bank cards provided by the co-offender to withdraw cash, purchase gift cards and remit those monies, together with monies from the sale of mobile phones to Chinnam. The total amount of money involved was $13,971.65. He also opened numerous bank accounts using false information and arranged for bank cards to be issued in the name to the victims to be sent to a false address adjacent to his own residence. I find that the offender knew what he was doing was wrong and he was facilitating the defrauding of victims by conduct which was substantially morally culpable.

Other offences required to be taken into account - s16A(2)(b)

72. I take into account the two matters on the s16BA Schedule namely Sequences 39 and 41. Sequence 39 involved the offender attempting to use the Visa card provided by the co-offender in six subsequent transactions to a total of $1,661 however the transactions were declined. The objective seriousness of the offending is in the low range of seriousness for an offence pursuant to
    s400.7(2) and s11.1(1) of the Criminal Code.

73. The offending in Sequence 41, attached to Sequence 40 involved the offender saving identification information in the form of images of the drivers licenses of fourteen different people on his mobile phone with the intention of facilitating the commission of offences relating to the use of identification information to open further bank accounts. The objective seriousness of the offending was within the lower range of objective seriousness for an offence pursuant to s372.2(1) of the Code.

Whether the offences form a course of conduct - s16A(2)(c)

74. 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 not only substantial sums of money but details relating to their identity.

The personal circumstance of any victim of the offence – s16A(2)(d)

75. There was no evidence before me of the personal circumstances of any of the 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 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 this criminal activity.

The offender’s contrition - s16A(2)(f)

76. I accept that the offender has shown some contrition in his statement to the psychologist and that he has made reparation for losses resulting from the offences and the Crown is not seeking further reparation.

The offender’s plea of guilty - s16A(2)(g)

77. I accept that the offender has pleaded guilty at the earliest opportunity and has demonstrated some remorse for his offending conduct notwithstanding a strong focus by him of the impact of his offending conduct on himself and his family. Notwithstanding that the plea was entered in the face of a strong Crown case, there was utilitarian benefit to the community resulting from the avoidance of a lengthy trial. I therefore propose to allow a utilitarian discount of 25% in respect of the offender’s pleas of guilty and his remorse.

Specific deterrence - s 16A(2)(j)

78. Specific deterrence is important in sentencing for money laundering offences as such offending conduct is difficult to detect and facilitates further criminal offending in the community. Specific deterrence is somewhat diminished in the sentencing process here as the offender’s arrest and incarceration for 24 days has had a salutary impact on him.

General deterrence - s16A(2)(ja)

79. 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 prescribed lengthy terms of imprisonment (for example 10 years in respect of sequence 40) and that the court will impose condign punishment in appropriate cases to deter like-minded persons from such activities.

The character, antecedents and background of the offender - s16A(2)(m)

80. The offender has no previous criminal convictions and is a 28-year-old highly educated man from India who had completed his education in Australia. I have taken into account his prior good character.

Prospects of rehabilitation – s16A(2)(n)

81. I find that the offender is 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 – s16A(2)(p)

82. The offender’s family are in India and have been financially supported by him since his arrival in Australia. I accept that his mother is unwell and requires continuing support to pay for her ongoing treatment.

83. Section 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 the circumstances of the case.

84. I find, having considered all other available sentences, that that threshold has been passed and that a sentence of imprisonment is to be imposed on the offender. The offender has sought through his solicitor an order that any such sentence be served in the community.

85. I have taken into account the maximum penalty imposed by Parliament of 2 years imprisonment or 120 penalty units, or both, in respect of Sequences 4 and 38. I have also taken into account the maximum penalty of 10 years imprisonment or 10,000 penalty units in respect of the offence pursuant to
    s 136.1(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The maximum penalties are an indication of the seriousness with which Parliament regards such offending, and are guideposts in the sentencing process. I have also taken into account that the offences occurred within the period of some five months and that the three offences involved a series of criminal acts so as to perpetrate frauds on three separate victims.

86. I intend to proceed pursuant to s53A 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 seriousness of the offending, his previous good character, the subjective matters outlined above and a 25% utilitarian discount will be nine months imprisonment for Sequences for 4 and 38 and 12 months imprisonment for Sequence 40. I have taken into account in those indicative sentences the charges on the s16BA Schedule namely Sequences 39 and 41.

87. 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."

88. Having regard to the length of time over which the offending took place, the fact that there were a number of victims and numerous transactions taking into account the matters on the s 16BA Schedule the sentences should not be served wholly concurrently but rather there should be some accumulation in sentence.

89. The principle of parity also has a role to play in sentencing here. The offender Chintagunta was sentenced having pleaded guilty to two charges pursuant to s400.6(1)(b)(i) of the Code which carried maximum penalties of 10 years imprisonment or 600 penalty units, or both. A further offence was taken into account on a s16BA Schedule for an offence pursuant to s400.7(1)(b)(i) and
    s11.1(1) of the Code which carried a maximum penalty of 5 years imprisonment or 300 penalty units or both.

88. The parity principle is based on the concept that like cases should be treated alike and different cases differently - see Green v The Queen (2011) 244 CLR 462 at [28]. I have taken into account that the co-offender Chintagunta was sentenced in respect of two similar but not identical offences carrying maximum penalties of 10 years imprisonment or 600 penalty units for both and another offence carrying a maximum penalty of 5 years imprisonment was taken into account on a s16 BA Schedule. I have also taken into account my findings that the co-offender’s offending was objectively more serious than the offending here, that the co-offender’s role was more objectively serious than that of this offender and that there were more victims. Further no reparation was made by the co-offender. The subjective factors to be taken into account are somewhat similar, both offenders being of Indian nationality, residents in Australia on student visas, both were highly educated and both affected at the time of the offending by COVID-19 constraints on them earning income and were unable to receive government benefits by way of their visa status. Both were naïve in embarking on the criminal enterprise. I have also taken into account that the offender here served 24 days presentence custody which was onerous for him.

89. Having regard to all of those matters I intend to impose a sentence of 15 months imprisonment on the offender and to order a recognizance release order for his immediate release.

orders

92. I hereby order as follows:

1. You are convicted of the following offences:

1. Sequence 4, an offence pursuant to s 400.9(1A) of the Code – that between about 16 March 2022 and about 18 March 2022 at Sydney in the State of New South Wales, he dealt with money or other property, it being reasonable to suspect that such money or other property was proceeds of an indictable crime and at the time of the dealing the value of the money or other property was less than $100,000.

2. Sequence 38, an offence pursuant to s 400.7(2) of the Code – On or about 9 October 2021 at Sydney in the State of New South Wales, he dealt with money or other property that 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 dealing the value of the money or other property was $1,000 or more.

3. Sequence 40, an offence pursuant to s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Between about 22 February 2022 and about 26 March 2022 at Sydney in the State of New South Wales, he gave information to a reporting entity knowing that the information was false or misleading, and that information was given or purportedly given under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) or a provision of the Anti-Money Laundering and Counter-Terrorism Financial Rules.

2. I sentence you to an aggregate sentence of 15 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 recognizance without surety self in the sum of $500 on the following conditions:

1. That you be of good behaviour for a period of 15 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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Amendments

01 March 2024 - Corrected paragraph numbering and anonymised date.

Decision last updated: 01 March 2024