New South Wales District Court CITATION: R v Rudy CHANDRA [2009] NSWDC 254 HEARING DATE(S): 6 August 2009 EX TEMPORE JUDGMENT DATE : 6 August 2009 JURISDICTION: District Court Criminal JUDGMENT OF: Berman SC DCJ DECISION: See Paragraphs [23] [24] [25] [26] & [27] CATCHWORDS: Criminal law - Sentence - Form 1 - Fraud - Gambling addiction PARTIES: The Crown Rudy Chandra FILE NUMBER(S): DC 09/11/0226 COUNSEL: S Russell - Offender SOLICITORS: NSW DPP Conaghan Hunter Solicitors SENTENCE 1 Rudy Chandra appears for sentence today on five separate offences. When I sentence him for the first of those, he asks that I take into account a number of other matters on a Form 1. 2 The offender pleaded guilty to each of those offences in the local court and so I will discount the sentence I would otherwise have imposed for each offence by twenty-five percent to reflect the utilitarian value of his pleas of guilty. 3 The offender has committed a number of various forms of what could loosely be called fraud. He says that he did this because he was in debt due to his gambling. It is as well to state some fundamental principles. Gambling is an addiction and people do act less than rationally at times because of that addiction, but this is not to ignore that gamblers have a choice when they run out of their own money. They can either recognise that fact, or they can attempt to obtain money through other means, most usually, illegal means. 4 That is what the offender did in this case. It is his criminal decision to engage himself in illegal activity which forms the basis of his moral culpability. 5 Not only in this case did gambling form the genesis of the offender's misconduct, but it also, in many ways, provided the means. For example, the offender said and I accept immediately, that at the various casinos can be found people willing to facilitate the commission of criminal activities by those who are in need of further money. 6 The offender committed the first of his offences in this way: He owed a man by the name of Sam Assayed about twenty thousand dollars. Mr Assayed approached him and told him that if he wanted to discharge the debt he could do so by providing his own bank account details to Mr Assayed. He did so knowing, of course, that these details would be used to facilitate some form of illegal transaction which must have involved money being fraudulently taken from someone. (The offender may not have known who), and put into his own bank account. 7 In fact what appears to have happened is that Mr Assayed handed those details to a man by the name of Clearwater. He, using his technological skills, accessed a particular bank account and on two occasions (which must have been within minutes or even seconds of each other), withdrew one hundred thousand dollars and put the resulting two hundred thousand dollars into the offender's bank account, utilising the details that he had provided. Fortunately, the authorities intervened before the money could be withdrawn. 8 It might be said that the offender was not the person who actually performed the transaction, and that is true. It might be said that the offender did not know how much money would be withdrawn from the innocent victim's account when he provided his bank account details, but the offender clearly contemplated an offence of this magnitude because once the money had been transferred into his account, he apparently quite willingly and without complaint, handed over a cheque drawn on his account in the sum of two hundred thousand dollars. This was to be used of course to obtain the money which had been illegally transferred. 9 That is a significant offence. The offender was an accessory before the fact, rather than a principal but it is clearly the case that he contemplated a significant loss to someone through say significant criminal activity. 10 In sentencing him for those two offences I will impose concurrent sentences. There was one criminal act in handing over the bank account details and it was up to Mr Clearwater rather than the offender, how many times he used those details. There is one qualification of course and that is that the first of those offences has the Form 1 matter on it and so a longer sentence must be imposed to reflect that circumstance. 11 The next offence concerns an offence of being an accessory after the fact to obtaining a valuable thing by deception. The offender had lent money to another person and had been provided with a Mercedes motor vehicle as security. Despite attempts by the offender to get the money repaid, this did not occur and eventually when registration was due, the man who owed him the money told him to transfer the car to his name. The offender realised that the man who owed him the money was not the legitimate owner of the car but nonetheless, went ahead and kept the car anyway. That car was discovered when he was arrested by police and it was returned, as I understand it, to its rightful owner. The car was valued at some seventy-five thousand dollars. 12 The next two offences involve significant misconduct by the offender himself. On two occasions he falsely filled in credit card applications then went and spent a significant amount of money on those credit cards. In each case a substantial loss was occasioned, eighteen thousand dollars on one offence and almost fourteen thousand dollars on the other. 13 The offender has now taken out a loan and repaid that loss and is in the process of repaying the loan. To do so he works two jobs, one at a cake factory and another stocking shelves for K-Mart. 14 The offender does have a prior criminal history although nothing approaching the criminality displayed in these offences. Some time ago he was found with a false driver's licence and also there was an offence of goods in custody. The offender came to Australia some years ago and seems to have been an industrious and successful person. He has a family and although his gambling and these offences caused some marital disharmony, as might be expected, he is attempting a reconciliation with his wife and children. As Mr Russell says, he is living with them "on probation." 15 As well as attempting to reconcile with his wife, the offender is attempting to overcome his problems with gambling. He has been seeing a psychologist and the psychologist realistically reports, it seems, that whilst there is no certainty, the offender is progressing well. 16 Gambling is not a significant matter of mitigation primarily for the reasons I outlined at the beginning of these remarks on sentence. There needs to be a significant component of both general deterrence and personal deterrence in this case. Even those who have a problem with gambling need to understand that when they make the decision to commit criminal offences to further their gambling activities, they will be dealt with appropriately. The offender himself needs to understand the consequences of criminal behaviour, even if that criminal behaviour is related to gambling debts. 17 I should also mention other criminal activity of the offender, for which he is not to be sentenced, because of its interrelationship with the offender's misconduct. The offender was found with a large amount of United States currency. He explained that this was not his but belonged to his sister-in-law and her husband. They had given him one point six million dollars to invest knowing that he was a successful person in Australia, but rather than investing it all, he had invested a proportion of it and gambled a large amount. The three hundred thousand dollars represented what was leftover. When he was in debt because of his gambling, he chose not to use his sister-in-law's money but chose to commit activities of the sort I have described earlier. That of course is not terribly relevant, it just means that he committed a different form of criminal offence to that he would have committed if he had stolen his sister-in-law's money and paid off his gambling debts that way. 18 The offender tried to explain some of his offences on the Form 1, in particular the provision of false information when transferring money, this way. He said that he was scared of a home invasion and was worried that people in the bank might understand that he had some money and so he did not provided his legitimate address and name. He also explained, that he was able to obtain false documents easily from people at the casino and he did so, not only so that he could commit the two offences of making false statement with intent, but also in case he needed to commit further offences of that kind in the future. 19 When I look at the entirety of the offences, both those for which the offender is to be specifically sentenced and those appearing on the Form 1, it can be seen that the offender was an industrious criminal. He was prepared to commit a number of different offences in order to obtain money which was not his. There was no suggestion that he would have voluntarily given up his activities, without the intervention of the police. Indeed the fact that he had a number of false documents in his possession, reflected in the Form 1 offences, also demonstrates the offender's intention to continue his illegal ways if he needed to. 20 These offences are very serious. The potential loss to innocent people or innocent corporations is significant. As I said it is a matter of good fortune that the two hundred thousand dollars was not withdrawn and that the car was returned to its rightful owner. It is not a significant matter of mitigation that no loss has been caused. Failure to pay back the money owed to the banks and loss in other ways would have been an aggravating factor. 21 The Crown suggests that full time custody is required. Mr Russell suggests that if a custodial sentence is imposed, it should either be suspended or of periodic detention. I can immediately pass over the issue as to whether a suspended sentence should be imposed because of the length of the sentence I have decided to impose. The submission in favour of a sentence of periodic detention is primarily based on the fact that the offender is rehabilitating himself and does work at those two jobs that I have referred to earlier. Periodic detention would have the attractiveness of enabling the offender to remain with his family and work productively. On the other hand, it is a fundamental rule in sentencing, that a sentence needs to reflect the objective gravity of an offender's conduct and I am satisfied that a sentence of periodic detention would not meet that objective. These were serious offences committed over a significant period of time by an offender who made the personal choice to do what he did. Nothing other than full time custody would be appropriate in the present case. 22 I mentioned the activities of a Mr Clearwater. He was dealt with in the local court and received a sentence of twenty months with a non-parole period of fifteen months for three offences, two of which were related to the offences involving Macquarie Bank for which I am to sentence the offender. The Crown and Mr Russell, and indeed, I share some surprise firstly at the fact that the matter was dealt with in the local court and secondly that the sentence imposed was as lenient as it was. Part of the explanation may be the subjective matters appearing in the pre-sentence report. In any case however, I have taken into account the principles of parity when formulating the appropriate sentence for the matters involving Mr Clearwater and the offender. The offender should not have a justifiable sense of grievance when he compares the sentence he receives with the sentence imposed on Mr Clearwater. 23 I will impose sentences as follows. I am working backwards because of the way that sentences need to be imposed in New South Wales. For the offence of making a false statement with intent, item 5 on the Crown Sentence Summary, I sentence the offender to imprisonment. I set a fixed term of twelve months to date from 28 July 2009, that date has been selected to reflect one week's pre-sentence custody. 24 For the other offence of making a false statement with intent, item 4 on the Crown Sentence Summary, the offender is sentenced to imprisonment for twelve months, fixed term to date from 28 October 2009. 25 For the offence of accessory prior to the fact of obtaining a valuable thing by deception, item 3 on the Crown Sentence Summary, the offender is sentenced to imprisonment. I set a fixed term of twelve months to date from 28 January 2010. 26 For the offence of accessory before the fact to obtain money by deception, item 2 on the Crown Sentence Summary, the offender is sentenced to imprisonment, I set a non-parole period of six months to date from 28 July 2010 and a head sentence of twelve months. 27 For the offence of accessory before the fact to obtain money by deception, item 1 on the Crown Sentence Summary, taking into account the matters on the Form 1, the offender is sentenced to imprisonment. I set a six months non-parole period to date from 28 July 2010 and a head sentence of eighteen months. That means that the offender is to be released to parole on 27 January 2011. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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