The Queen v Kumar

[2018] VCC 2275

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00446

THE QUEEN

v

RAKESH KUMAR

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	17 December 2018
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	The Queen v Kumar
MEDIUM NEUTRAL CITATION:	[2018] VCC 2275

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Jointly falsify document with intention of obtaining gain; No reason to falsify police check as at time no prior convictions; General deterrence.

Sentence:  Three months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms K. Breckweg	Commonwealth Director of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HIS HONOUR: 

1Rakesh Kumar, you have pleaded guilty to one charge that between 1 March 2011 and 8 April 2011, you jointly, dishonestly with Baljit Singh falsified a document with the intention of obtaining a gain.  That offence is contrary to ss 11.2A and s 145.4(1) of the Criminal Code (Cth).

Circumstances of the offending

2Ms Breckweg, on behalf of the Commonwealth Director, tendered a summary of prosecution opening which became Exhibit A. In short, the allegations or the actions that comprise this charge are as follows: 

3You were involved in the management and operation of the St Stephen Institute of Education Training and St Stephen Institute of Technology in High Street, Reservoir at the relevant time. 

4Baljit Singh was the co‑director, Chief Executive Officer and the majority shareholder. You were the co‑director in what was known as the RTO manager. That is, the Registered Training Organisation manager and a minority shareholder. 

5As at 2011, St Stephen was registered to provide vocational education and training courses for both domestic and international students.  In that year, an audit was conducted by Chloe Dyson who was an external contracted auditor on behalf of the regulator, the Victorian Registration and Qualifications Authority. That audit was conducted on 7 and 8 April 2011 and was instigated as a result of St Stephen making an application to extend the scope of its registration to allow it to increase the number of courses it could provide to students. 

6Ms Dyson met with you and others, including Mr Singh, at St Stephen on 7 April 2011. The records of that audit contain a document that was completed by Ms Dyson at the conclusion of the audit visit. It reveals that you were required to provide to Ms Dyson evidence that you were a fit and proper person and qualified to conduct the business of a Registered Training Organisation, and the regulator required as a matter of practice that directors show the auditor evidence of a police check.  In completing the audit, Ms Dyson noted that you had shown her a document which stated as follows: ‘Rakesh Kumar: AFP police certificate ‑ name check only, 2/2/11 reference 499/2922243’. A copy of that document was not made or retained by Ms Dyson. 

7Applications for national police check certificates are processed by the criminal records unit within the Australian Federal Police.  Once an application is finalised and a check has been completed, the national police certificate is produced and given a unique reference number which appears on the certificate on the top left of the document labelled ‘our ref’. 

8The national police check certificate with the reference number noted by Ms Dyson was issued in the name of Sandeep Kaur, date of birth 2/10/87, and the application for that check was submitted to the Australian Federal Police by a migration service and was finalised on 23 July 2010. The certificate in the name of Mr Kaur was posted to the address of the migration services company. 

9No national police certificate in the name of Rakesh Kumar with the unique reference number 499/2922243 has been issued by the Australian Federal Police Criminal Records Section.  The national police certificate produced to Ms Dyson in the course of the audit was therefore a falsified Commonwealth document and the production of that falsified certificate contributed to the positive audit finding that St Stephen was compliant with one of the important conditions that it needed to comply with for the purposes of registration. 

10When Mr Kumar was interviewed in relation to this allegation on 5 August 2015, he denied knowledge of any false national police certificate in his name.  He denied having forged any such document indicating that there was no urgency to forge it and that there would be no logic in doing so, because he had no adverse findings against him that would require him to seek a certificate in another person's name. 

Personal circumstances

11You were born on 19 January 1978 and are now 40 years of age.  During the time at which you were audited by Ms Dyson, you were 33 years of age.  You are married with two children, aged 10 and 7 and you have no prior convictions.  You are currently serving a term of five years' imprisonment with a non‑parole period of three years, having been sentenced for offences of dishonestly influencing a Commonwealth public official and dealing with proceeds of crime.  Those offences span a period of July 2011 through to August 2015, and that sentence was imposed as at 21 September 2018. The maximum penalty for this offence is seven years' imprisonment.

12In respect of your background, you grew up in Punjabi, northern India.  Your family was hardworking and well‑respected.  You have two younger sisters, Rekha Arora and Seerat Arora.  Seerat Arora is married with one child.  She has an MBA and works as a bank executive and lives in Mumbai in India.  Rekha Arora is married to your co‑accused, Baljit Singh in respect of this matter.  She lives here in Australia. 

13In India your father owned a business selling electrical goods which have been quite successful.  Your mother worked raising the children and assisting in the family business.  Significantly your father travelled to Australia from India to be present at the time of the plea with respect to the offences that you are currently serving your term of imprisonment.  At school you excelled academically.  You completed your Year 12 at SN College in the City of Banga, achieving very high marks in 1999, you completed a Bachelor of Science degree in the University in Amritsar.  You then sat an entrance exam to undertake a master’s degree in computer science and ranked second amongst the candidates throughout India.  You completed that degree in 2003 at the prestigious Indian Panjab University in Chandigarh.  Thereafter you worked in higher level positions as a software engineer for multinational companies, both in India and the US.  Your family is apparently quite culturally traditional.  In 2006 you married Nancy Wadhwa.  The marriage had been arranged between your two families and has been successful. 

14In 2006 and 2009 you visited your sister Rekha Arora here in Australia.  Although you had been successful in India, you saw Australia as providing the best opportunities for your family and you migrated here in January 2010.  Initially the family lived with Mr Singh and Ms Arora for about six months.  You then moved to a share house in Lalor for another six months until you were able to purchase your own home in Epping in November 2011.

15I was told that your children have been almost wholly raised in Australia and regard themselves as Australian, however, recognising the inevitably of the imposition of a term of imprisonment with respect to the earlier matter, arrangements were made for Ms Wadwa and the children to return to India to live with their paternal grandparents in Punjab.  That decision was made, taking into account the lack of family support if they were to remain here. 

16In terms of work in this country, you worked as a driver and courier in Mr Singh's Australia Post business and with the financial assistance of his father, you were able to purchase a 25 per cent stake in St Stephen for approximately $100,000 in around 2010.  Whilst working at St Stephen, you undertook work in a second job, either as a courier or at a shipping company and you worked long hours.  Ms Wadwa has herself worked in a number of jobs such as cleaning and child care. 

17In the months prior to August 2015 you and your wife purchased a restaurant in South Morang for approximately $310,000. In the wake of your arrest and surrounding publicity associated with that matter, you were forced to sell the restaurant at a significant loss.  On the matter for which you were imprisoned originally in September, a number of personal references were tendered on your behalf and those references attested to the fact that you had endured a great deal of humiliation as a result of your involvement in that offending, but that you still held the respect of many within your community, despite the fact that your convictions for those matters had become well‑known here and even in some parts of India. 

18It is clear that you come from a loving family and that you fortunately still enjoy their support. Those matters, it seems to me, enhance your prospects for rehabilitation. 

19Mr Barker, on your behalf, submits that I should take into account your plea of guilty which he says is important, given that it was open to you to contest this matter because the document that is the subject of the charge was not retained by Ms Dyson and the prosecution were only in a position to rely upon her notation as to what it was she had sighted.  Moreover, he submitted that it was a mitigating feature of your offending in respect of this matter, that had a genuine certificate been sought, it would have been issued because you had no adverse findings with respect to police involvement. 

20Notwithstanding that, Ms Breckweg, on behalf of the Commonwealth Director, submitted that it is important, so far as this type of charge is concerned, to protect the integrity of the system of the provision of police checks.  The system is obviously relied upon to facilitate commerce and other important dealings and accordingly if forgery is detected, then it should be denounced and punished in a manner that would deter others from committing like offences. 

Sentence

21Having taken all of those matters into account, it seems to me that it is appropriate to impose a relatively short‑term of imprisonment, having regard to the principle of totality and indeed having regard to the fact that you are having to serve your term of imprisonment alone and without the support of your family.  It seems to me that this is in all the circumstances, an appropriate case to order that such imprisonment, as is imposed, commence immediately.

22Mr Kumar, would you stand for a moment, please.  On the one charge of falsifying a document, you will be convicted and sentenced to three months imprisonment.  I will order that that sentence commence today, 17 December 2018 and I will note that it will expire on 16 March of 2019, so that my sentencing intention is clear.  I will state that it is my intention that the sentence I now impose be served concurrently with the sentences that you are now undergoing.

23I will declare pursuant to s 6AAA of the Sentencing Act, but for Mr Kumar's plea of guilty, I would have sentenced him to six months imprisonment. I will cause that declaration to be noted in the records of the court.

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