Citation: R v Thota [2024] NSWDC 48
Court: District Court of New South Wales
Date: 1 March 2024
Judge(s): Mahony SC DCJ
Background
The offender, a 28-year-old Indian national residing in Australia on a bridging visa, was recruited into a telecommunications fraud scheme by a co-offender with whom he had a longstanding friendship. He was introduced to the scheme's principal, who coordinated the criminal enterprise via WhatsApp. The offender was employed at a Woolworths distribution centre and was experiencing financial pressure from living costs, study fees, immigration expenses, and remittances to his family in India.
The offending occurred between October 2021 and March 2022. It involved using stolen card details to purchase gift cards, and separately, using the fraudulently obtained personal information of three scam victims to open numerous bank accounts with multiple financial institutions. Bank cards issued in the victims' names were directed to a false address adjacent to the offender's own residence. The offender also withdrew cash and purchased goods using one of the fraudulently opened accounts, transferring proceeds to the scheme's principal.
The offender pleaded guilty to three charges under the Criminal Code Act 1995 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Two further matters were admitted and taken into account on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). A co-offender, Chintagunta, had been sentenced separately by the same judge for related but not identical offences, making parity in sentencing a relevant consideration.
Legal Issues
- What was the objective seriousness of each of the three index offences, and the two schedule matters?
- What weight should be given to the offender's subjective circumstances, including mental health, remorse, and prospects of rehabilitation?
- Was a full-time custodial sentence warranted, or could any sentence be served in the community?
- How should the parity principle be applied, given the co-offender's earlier sentence?
- What discount was appropriate for the early guilty plea, and how should the totality principle inform the aggregate sentence?
Decision
Objective Seriousness
The court assessed each offence as falling at the lower end of its respective range. Sequence 4 (dealing with suspected proceeds under s 400.9(1A)) and Sequence 38 (dealing with proceeds under s 400.7(2)) both occupy a low position in the Division 400 hierarchy (at [66]-[68]). Sequence 40, giving false information to banking entities under s 136(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, was assessed as falling in the middle of the low range, given the duration of the conduct and the number of transactions across three victims (at [69]). Despite the lower ranges, the court found the offender knew his conduct was wrong and was substantially morally culpable (at [71]).
Subjective Circumstances
The court accepted that the offender had pleaded guilty at the earliest opportunity and had demonstrated some remorse, though it noted his focus appeared more directed at the impact on himself and his family than on the victims (at [77]). He had no prior criminal history, was assessed as having a low risk of reoffending, and had good prospects of rehabilitation (at [80]-[81]). His mental health difficulties, including persistent depressive disorder with anxiety and traumatic symptomatology, were noted, as was the salutary impact of 24 days of pre-sentence custody (at [78]). A 25% utilitarian discount was applied for the early pleas and remorse (at [77]).
Deterrence
General deterrence was accorded primary importance, given the difficulty of detecting money laundering and its role in facilitating sophisticated criminal enterprises targeting vulnerable members of the community (at [79]). Specific deterrence was regarded as somewhat diminished by the significant personal impact the offender's arrest and brief custody had already produced (at [78]).
Parity and Totality
Applying the parity principle, the court took into account that the co-offender Chintagunta had been sentenced for objectively more serious conduct involving more victims, higher maximum penalties, and no reparation (at [90]). The offenders shared similar subjective circumstances. Applying principles of proportionality and totality, and declining to make the indicative sentences fully concurrent given the multiple victims and numerous transactions, the court arrived at an aggregate sentence of 15 months imprisonment (at [88]-[91]).
Orders Made
- The offender was convicted of three offences: dealing with proceeds of indictable crime (s 400.9(1A)); dealing with proceeds of indictable crime (s 400.7(2)); and giving false or misleading information to a reporting entity (s 136(1) Anti-Money Laundering and Counter-Terrorism Financing Act 2006).
- An aggregate sentence of 15 months imprisonment was imposed.
- A recognizance release order was made under s 20(1)(b) of the Crimes Act 1914 (Cth) for the offender's immediate release on entering into recognizance without surety in the sum of $500.
- Conditions attached to the release order: good behaviour for 15 months; supervision by a Community Corrections probation officer; compliance with all reasonable directions of the probation officer; no interstate or overseas travel without written permission of the probation officer.
- The offender's passport is not to be returned without the consent of the probation officer and police.
- The offender was directed to report to City Community Corrections within 7 days.
Key Takeaways
- Under s 17A of the Crimes Act 1914 (Cth), a federal court may only impose imprisonment where, having considered all other available sentences, it is satisfied no other sentence is appropriate; here, that threshold was met, but the sentence was ordered to be served in the community via a recognizance release order (at [83]-[84]).
- General deterrence carries primary importance in sentencing for money laundering offences, given the difficulty of detection and the role such conduct plays in enabling sophisticated criminal enterprises targeting vulnerable people (at [79]).
- The parity principle required the court to sentence this offender less severely than the co-offender, whose offending was objectively more serious, involved more victims, and attracted no reparation, even though the co-offender faced charges carrying higher maximum penalties (at [89]-[90]).
- A 25% utilitarian discount was applied for pleas entered at the earliest opportunity, notwithstanding that the pleas were entered against a strong Crown case and that the offender's remorse appeared weighted toward personal and family impact rather than victim harm (at [77]).
- Where multiple offences form a course of conduct with several victims and numerous transactions, the District Court declined to order fully concurrent sentences, instead applying some accumulation before arriving at a proportionate aggregate term (at [88]).
Legislation and Cases Referenced
Legislation
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006
- Crimes Act 1914
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code Act 1995
Cases
- 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