Citation: R v Pablo [2022] NSWDC 429
Court: District Court of New South Wales
Date: 23 September 2022
Judge: Fitzsimmons SC DCJ
Background
The offender, a self-employed IT consultant, was recruited in early 2020 to assist an unidentified individual known as "Dave Darshan" with what was presented as an online puppy-selling business. His role evolved from online marketing into acting as a financial intermediary: opening approximately 29 bank accounts to receive payments from buyers, withdrawing those funds, and converting them to bitcoin via ATM for Darshan's benefit. The offender retained approximately 20% of each transaction as commission, and Darshan also began paying his rent.
By April to May 2020, the offender acknowledged awareness that the business was a scam and that customers were not receiving the puppies they had paid for. Despite this knowledge, he continued participating in the scheme for approximately six more months, until January 2021. He also assisted Darshan in creating dummy invoices and offered his IT expertise to further the operation.
The offending came to light following victim complaints to police. The offender attended a police station in September 2020 attempting to position himself as a victim, but subsequently made full admissions during two recorded police interviews. In total, $172,624.99 passed through his accounts, with the offender estimated to have retained approximately $34,524.99 in commission.
Legal Issues
- What was the appropriate sentence for five charges of knowingly dealing with proceeds of crime under s 193B(2) of the Crimes Act 1900, together with two further offences taken into account on a Form 1?
- Where did the objective seriousness of the offending sit within the range for this type of offence?
- What weight should be given to the offender's subjective circumstances, including health conditions, drug use history, and rehabilitation prospects?
- Whether the sentence should be served by way of full-time imprisonment or an intensive corrections order (ICO).
Decision
Fitzsimmons SC DCJ assessed the objective seriousness of the offending as falling within the lower middle of the range. The court identified several aggravating features: the large number of victims (across multiple months), the total defrauded sum exceeding $170,000, a moderately sophisticated level of planning, and the offender's continued participation after he knew the scheme was fraudulent. The court noted that victims suffered both financial loss and emotional distress, and that the offending occurred during the first COVID-19 lockdown when people were particularly susceptible to purchasing companion animals.
The offender received full credit of 25% for his early guilty plea. The court accepted that his cooperation with police, including making full admissions in two recorded interviews and providing relevant documents, was a significant mitigating factor. The court also received evidence of the offender's serious health conditions (including HIV infection, thyroid disease, and pre-diabetes) and his history of drug dependency, which was identified as a contributing factor in the offending.
On the question of how the sentence should be served, the court preferred an intensive corrections order over full-time imprisonment. Expert evidence from a forensic psychologist indicated the offender had better rehabilitation prospects in the community, where he could continue counselling and manage his medical conditions effectively. The court was satisfied that an ICO would adequately address punishment, deterrence, rehabilitation, and denunciation, as required by s 3A of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- The offender is convicted of the five offences to which he pleaded guilty.
- An aggregate sentence of two years imprisonment is imposed, to be served by way of an intensive corrections order, commencing 23 September 2022 and expiring 22 September 2024.
- Standard conditions: the offender must not commit any offence, and must submit to supervision by a community corrections officer at the City Community Corrections office (to attend by 30 September 2022).
- Additional conditions:
- Perform 200 hours of community service work.
- Participate in a rehabilitation or treatment program.
Key Takeaways
- The District Court confirmed that multiple transactions involving smaller individual amounts are treated as more serious than a single large transaction, following the principles in R v Huang and R v Li.
- A defendant's continued participation in a scheme after gaining actual knowledge of its fraudulent nature is a significant factor in assessing objective seriousness, even where that defendant was not the primary orchestrator of the fraud.
- Offending timed to coincide with a period of community vulnerability, such as the COVID-19 lockdown, can elevate objective seriousness beyond what the transaction amounts alone might suggest.
- Full cooperation with police, including unsolicited attendance and full admissions in recorded interviews, carries meaningful mitigating weight in sentencing for proceeds of crime offences.
- Where credible expert evidence establishes that an offender has superior rehabilitation prospects in the community, particularly due to serious medical needs, an ICO may be preferred over full-time custody even for offending of moderate seriousness.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193B(2) (knowingly deal with proceeds of crime; maximum penalty 15 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 23, 37, 53A, 66
- Migration Act 1958 (Cth)
Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (Form 1 principles)
- Imbornone v R [2017] NSWCCA 144
- Lloyd v R [2022] NSWCCA 18
- Panetta v R [2016] NSWCCA 85
- R v Huang (2007) 174 A Crim R 370
- R v Li (2020) 202 A Crim R 195
- R v Qutami [2001] NSWCCA 353
- SZ v R [2007] NSWCCA 19