R v Bajrang Bothra [2012] NSWDC 158

District Court New South Wales

Medium Neutral Citation: R v Bajrang Bothra [2012] NSWDC 158 Hearing dates: 11/05/12 Decision date: 16 May 2012 Before: Judge S Norrish QC Decision: Convicted: Sentenced to a term of imprisonment consisting of a non parole period being 1 year and 9 months to commence on 16/5/12 and expire on 15/2/14. The balance of the sentence being 1 year and 6 months is to expire on 15/8/15. The total sentence of imprisonment is 3 years and 3 months. Catchwords: CRIMINAL LAW: deal with proceeds of crime, fraud, breach of trust, early plea, special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act Crimes Act 1900 Cases Cited: R v NP [2003] NSWCCA 195 R v Waqa (No 2) [2005] NSWCCA 33 R v El Hani [2004] NSWCCA 162 Tsakonas v R [2009] NSWCCA 258 R v Sukkar [2006] NSWCCA 92 Thomson and Houlton [2000] NSWCCA 309 R v Chu (NSWCCA unreported 16.10.98) Category: Sentence Parties: Director of Public Prosecutions Bajrang Bothra (Offender) Representation: Mr B Haverfield - Offender Ms P Smith - Office of Director of Public Prosecutions - Crown File Number(s): 2010/298785 Publication restriction: nil

SENTENCE 1HIS HONOUR: Bajrang Bothra appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court contrary to s 193B(1) Crimes Act (1900) that he between 21 June and 9 August 2010 at Neutral Bay in the State of New South Wales did deal with proceeds of crime to wit $1,102,384 knowing that it was the proceeds of crime and intending to conceal that it was the proceeds of crime. 2This offence carries a maximum penalty of twenty years imprisonment. It does not have a standard non-parole period. 3It is agreed by the Crown on the submission of the accused that the plea of guilty was entered and the first reasonable opportunity and thus the prisoner is entitled to a discount of twentyfive per cent upon the otherwise appropriate sentence for the utilitarian benefit of the plea of guilty. 4The plea of guilty at an early stage, or at a reasonably early stage, but certainly prior to committal, is to be seen in the context of cooperation the offender has provided to the authorities to which I am required to take into account, particularly pursuant to s 23 Crimes (Sentencing Procedure) Act (1999). 5I am informed the prisoner has spent no time in custody. He was arrested on 2 September 2010 after an extensive police investigation. There are a number of co-accused who, as I understand the matter, await their outcomes in this Court. At the present time a co-offender by the name of William Tooth who will be referred to in the facts, is listed for sentence later this month or early next month. Two co-accused, Andrew Musumeci and Mary Ji, are, or have been, arraigned in relation to a similar offence to which the prisoner pleaded guilty. Another alleged offender, Maroun Kabbout, is either committed for trial, or about to be committed for trial. 6I was given some information about this orally last Friday. I have some details on the Crown's cover sheet however. The up-to-date picture I do not have an accurate record of as I have no transcript of last Friday's proceedings. 7The prisoner committed this offence whilst he was an employee of the Westpac Bank. I have a very lengthy statement of facts which sets out the facts alleged against the prisoner signed by the prisoner on 20 October 2011, annexed to which are several flowcharts and included within the statement of facts are extracts from documents to illustrate particular points. 8The strike force that investigated this matter was investigating the theft of over $1.1million and the prisoner came under suspicion in light of his connection with the customer from whose account the money was taken. 9I should point out, although it does not lessen the objective criminality, that the customer is not out of pocket from the fraudulent activities, if I might describe them as that in the general sense, of the prisoner and his coaccused. 10The crime to which the prisoner has pleaded guilty relates intimately to what the statement of facts describes as a "conspiracy" to defraud the bank of a total of $1,102,384 relating to one customer's account. The money has been disbursed through bank accounts held in other banks such as the Bank of China, the National Australia Bank, the Commonwealth Bank of Australia and the Westpac. 11Apparently of the moneys that were removed from the account of the customer, $100,000 was remitted to Iraq using a false name. 12The statement of facts signed by the prisoner notes that the prisoner was actively involved in preparatory acts. These preparatory acts to the commission of the offence relate to the connection of the prisoner with Indian nationals with whom he had an association and the extent of that relationship with those individuals is set out in the facts demonstrating his knowledge and connection with them. 13On 14 December 2009 the prisoner conducted two separate deposits into Westpac accounts which were opened in the names of the persons that he knew, Mr Maske and Mr Anugonda. 14Mr Anugonda had returned to India as I understand it, as had Mr Maske prior to the opening of those accounts and in any event the prisoner negotiated two separate deposits into accounts in their name in the sum of fifty dollars. 15It should fairly pointed out I interpose that these preparatory acts admitted by the prisoner have not been established beyond reasonable doubt to have been acts involving the prisoner planning the commission of the crime to which he has pleaded guilty. That is self-apparent from the facts because on 21 June 2010, some six months after the last of the so-called preparatory acts, the prisoner came into contact with a customer, Michaela King, whose account with the Westpac bank was situated at Neutral Bay. The prisoner spoke to her about her account and the facts revealed that the prisoner subsequently discussed her account with Mary Ji, one of the coaccused. The prisoner has provided information to the police, both through an interview and through an induced statement, which sets out the detail of his contact with Mary Ji and other aspects of the matter relating to his involvement in the events that give rise to the charge. I need not dilate upon the detail that he has provided, some of which is summarised in the statement of facts, but these sentencing proceedings have proceeded on the basis that the Crown accepts the account given by the prisoner. 16Essentially the facts reveal, in consideration of both the statement of facts and the material provided by the prisoner to the investigators, that the prisoner raised Ms King's account with Ms Ji who indicated to the prisoner an opportunity for Ms King's account to be exploited through what turned out to be her association with others, some of whom have been charged in relation to this particular "fraud". 17The chronology of events is that on 22 July 2010 a person came to the bank purporting to be Mrs King and spoke to Mr Bothra. As Mr Bothra had already met Mrs King and as the security photographs of both Mrs King and the person purporting to be Mrs King show those people to be very different looking people - in fact from my view of it the person purporting to be Mrs King appears to me to be a man - it is clear that Mr Bothra was aware that the person purporting to be Mrs King was not her. 18Mr Bothra facilitated the transaction which involved a telegraphic transfer of the sum of money, the subject of the charge, to an account held at the Bank of China in the name of William Tooth. William Tooth of course is a coaccused who I am informed has pleaded guilty. The real Mrs King had no knowledge of the transaction and did not authorise Mr Tooth to act on her behalf. 19After the funds were deposited into the Tooth, Bank of China account the funds were then disbursed to several other banks. Tooth has been charged with recklessly dealing with proceeds of crime pursuant to s 193B(3) Crimes Act. $550,000 was remitted to the National Australia Bank to pay out a mortgage over a property called Heathcote Tourist Park Development. Tooth had been earlier involved in using valueless cheques to try and pay out the same mortgage. 20Another half million dollars was transferred to the Commonwealth Bank of Australia account in the name of William Tooth. $110,000 was transferred to the name of Matthew Fuller. Fuller apparently is the owner of a finance company and he had been contacted by and spoken to Tooth on a number of occasions and the relationship between Fuller and Tooth is set out in the facts. 21Furthermore on 27 July 2010, Mr Bothra was captured on CCTV footage at the Neutral Bay branch of Westpac altering the account profile of Sasha Maske. At the time of conducting the change the accused Bothra used a computer terminal that another Westpac staff member had logged onto. The facts state that this was to ensure that there was no electronic record of Bothra having conducted the change. 22On 9 August 2010 a person purporting to be Sasha Maske attended the Westpac Bank located at Neutral Bay. He walked into the branch and went directly to the office of Mr Bothra. Mr Bothra must have known that this person was not Mr Maske who, as I said earlier according to the facts I have been provided, was a man known to the prisoner. It would appear the two men shared accommodation at West Ryde for some period of time in 2008. 23Mr Bothra organised for a local telegraphic transfer to a Commonwealth Bank of Australia account held in the name of Nabil Charmand. Charmand has been interviewed by the police. He has told that Maske had made arrangements with him for money to be deposited in the account of Charmand in the sum of $370,000. A person purporting to be Maske provided documentary evidence of the origins of the funds to satisfy his suspicion about the transaction and Charmand arranged for the transaction to happen. 24The facts state: "Given the fact Bothra was responsible for conducting the original telegraphic transfer from the King account to the Tooth account and then conducted the telegraphic transfer from the Maske account to the Charmand account, investigators became suspicious of Mr Bothra." 25The facts state that it was at this point they had discovered that Maske and Anugonda had left the country and the fact that both men had co-habited with Bothra was suggestive that they were known to him and thus came to pass that the prisoner was spoken to by police on 2 September 2010, having been first interviewed by bank investigators on 25 August 2011 and when he denied any knowledge of the frauds. 26However, when he was interviewed by police on 2 September 2010, to his credit, the prisoner participated in an electronic interview and made full and frank admissions of his involvement in the offences. He explained that he had been approached by Mary Ji to participate in the fraud, the opportunity in her mind arising from the information the prisoner had provided about Mrs King. 27The Crown has not proven beyond reasonable doubt that the prisoner had targeted Mrs King, but it is clear that the prisoner's involvement in the subsequent fraudulent activities was active and extended over a period of time, a period of time of some weeks. 28The prisoner explained the relationship of Maske to the circumstances of the fraudulent misappropriation, if I can use that expression very loosely, of Mrs King's funds. 29The prisoner told police when he was interviewed first on 2 September that he expected to receive between $150,000 and $200,000 for his involvement. This reflects the degree to which he was concerned with the fraudulent activities relating to the crime that he has committed. He did however only receive $10,000. $9,000 has been located by police, he had spent $1,000. 30It is said in the facts that when he was searched on his arrival at the police station on 2 September, he had in his wallet a stub form for the bank cheque for $390,000 that had been deposited into the Westpac account of Sasha Maske in July 2010. He obviously had not taken particularly professional steps to avoid detection. 31The prisoner provided a further statement to police on 7 September 2011. This is a detailed statement as providing a basis for the evidence that he would be prepared to give against the co-accused including at that stage Ji, Tooth, Musumeci and Kabbout. It is to be fairly said as the facts reveal that the prisoner's knowledge of the others was limited. Indeed, Ji was effectively the conduit through whom he communicated relevant matters that assisted their involvement in the crimes with which they are charged. 32It was acknowledged as I said earlier by the Crown that the preparatory acts relied upon in the statement were not acts that the Crown could prove were intentionally designed to set up the particular crime with which the prisoner is now charged. 33The Crown accepts too the assertion of the prisoner that he was induced to involve himself in the commission of the offence by Ji who had extensive social contact with him and according to the prisoner had revealed fraudulent activities on her own part in the employ of another bank on an earlier occasion. 34The prisoner's contact for the purposes of the fraud was principally through Ji, although there is a suggestion that the person who came purporting to be Mrs King which led to the initial movement of funds from her account to the Bank of China account, was in fact Mr Tooth. 35It is clearly probable at least that Ji had taken advantage of the prisoner's interest in the client Mrs King's affairs for a non-criminal purpose. But it is clear too that once she had revealed the more sinister use of Mrs King's assets, he demonstrated a willingness to assist her. 36It is clear too from the flowcharts I have been provided in the facts that the prisoner was to a considerable extent isolated from other offenders, some of whom were not known to him. 37It is clear that considerable planning had gone into the fraud, initially the taking of the money from Mrs King's account and the arrangements for it to be transferred to other accounts. However I accept the essential submission that the prisoner's initial involvement in the crime was not premeditated. His role clearly was important. However, he was not involved to the same degree in the planning that was involved in the dissemination of the funds as exposed to me in the facts. 38With regard to the objective facts however it is not to be forgotten that the prisoner has been involved deliberately in a significant breach of the trust bestowed upon him by the bank to act honestly in relation to the affairs of his clients. He also breached the trust obviously reposed in him by Mrs King when she discussed with him her private affairs. 39Even if it can be found, as I do, that the prisoner did not set out deliberately to exploit this particular customer, the customer's trust in the bank and the prisoner, as an agent of the bank, was breached in a way that requires particular consideration to be given to general deterrence. As general deterrence is equally to be considered in the context of the breach by the prisoner of the trust reposed upon him or in him by his employer. 40The fidelity and reputation of financial institutions rests upon the honesty and integrity of the staff who are provided access to, and entrusted with, much confidential information, that if misused can cause enormous financial harm to both customers and employer and shake the trust of the community in financial institutions. Without seeking to make it sound too dramatic, the prisoner had over an extended period of time, not just by a momentary lapse, betrayed both the customer and his employer. 41It is not to be forgotten in the assessment of the objective criminality of the prisoner, even allowing for the fact that he was induced into the commission of the offence by the persuasion of Ms Ji, that apart from the active participation that is revealed in the general sense, the prisoner knew the exact amount that was to be taken from the customer's account. He took steps to disseminate that amount to other sources and overcome difficulties in transferring funds to a particular source and, as I said, he involved himself in this matter on his own account for a very substantial sum of money, albeit that he ultimately received much less than he expected. There is of course, as I have said too, the period of time over which the offences were committed. 42The prisoner according to the criminal history I have been provided does have a criminal record. The criminal history reveals somewhat surprisingly, given that he was employed by the bank, that he was found guilty on 7 December 2004 at Kogarah Local Court of stealing property as a clerk, or a servant, for which he received a modest fine and ordered to pay court costs. I am not provided with any details in relation to that matter. I am prepared to accept that it is a minor matter and does not reveal the propensity by the prisoner to be dishonest. I again note my surprise that a person with a conviction for an act of dishonesty, particularly an act of dishonesty as an employee, servant or clerk, could find employment in a bank. 43However, it must also be fairly said that the prisoner's employment in the bank follows upon the fact in part that the prisoner has very substantial qualifications. He is the holder of a Master of Business Administration from the University of Technology. He has a degree from the University of Mumbai according to the academic transcript that I have been provided, and has obtained graduation from high school in India. The prisoner is an Australian citizen. 44He has produced a number of references from people that are either friends, acquaintances who have received the benefit of his generosity or assistance, or have employed him. There is also a reference from a customer of the bank. These references speak about the prisoner generally being a man who is honest and straightforward. They speak of the prisoner admitting to each of them his involvement in this serious crime and expressing regret and remorse for his involvement. 45Although the prisoner did not give evidence before me, I accept that he is genuinely remorseful and contrite and deeply regrets his succumbing to the temptations offered by Ms Ji. It is interesting to note that the various people that have had acquaintanceship with him in various ways speak of the fact that the allegations are uncharacteristic. Of course, being employed at the bank at the time of the commission of the offence one would have thought that being involved in the misappropriation of a million dollars would be uncharacteristic for a staff member. 46The former employer that the prisoner worked for at a dry cleaning shop, at some time before he had worked at the bank, speaks of the prisoner's industry and his honesty in that employment. The former customer of the prisoner when he worked at the Westpac Bank, Mr Marino, observed that the prisoner in dealing with customers was a hard worker who was courteous and again reflected his shock at the prisoner's involvement in this crime. I have had regard to all of that evidence, which essentially is consistent in the manner I have outlined. 47The prisoner was born in India and came to Australia to further his education and his economic opportunity. It is claimed by the prisoner, although this is not the subject of tests by cross-examination, that he was under some pressure to assist his family in India financially. He told the Probation and Parole Service that over ten years he had sent approximately $30,000 to $40,000 of his earnings back to his family in India. 48He frankly admitted to the Probation and Parole Service officer that he knew that committing the offence was wrong but thought "what's wrong in trying?" This assertion to the Probation and Parole officer does reflect something of a cavalier approach to his responsibilities as a trusted employee of the bank. He accepts however that his stupidity in becoming involved in this matter has ruined his career and brought disgrace to his family. 49The Probation and Parole Service report does not indicate any medical or mental health issues that explain the prisoner's offending. There is no evidence of any gambling addiction or obsession as it was described as just recently in the Sydney Morning Herald. It would seem that the temptation of making "easy money", and a very substantial sum of money, was the primary motivation. Again the prisoner has not assisted me in this respect by giving direct evidence on this matter. 50However, I believe I can act upon the representations he made against his interests in this respect to the Probation and Parole Service. It would seem in part financial pressure from home in India was a contributing factor. However, that is absolutely no excuse for his conduct and is certainly not a mitigating factor. It would almost never be a mitigating factor that a financial need motivated the commission of a crime. 51In this particular matter there is nothing remotely near any exceptional circumstance, or even special circumstance, to underpin that motivation, such as for example the need to raise money for a medical treatment for a family member or something of the sort. 52The prisoner has given an undertaking to give evidence against Ms Ji, Mr Musumeci, Mr Kabbout "and the false Michaela King and the false Sasha Maske", whoever those persons are proven to be. 53I should say of course I made some observations about who the false "Michaela King" may be. Even if I was completely wrong in that regard it detracts nothing from the objective seriousness of the prisoner's criminality, because whoever it was the prisoner clearly must have known it was not the real Mrs King. Particularly in light of the chronology of events and the fact that on his own account he had already agreed with Ms Ji to assist and directly act in transferring money from Mrs King's account. 54The assistance of the prisoner is also confirmed in material that is contained within a sealed envelope directed not to be opened. That material provided to the Court includes an assessment of the assistance the prisoner has provided. I do not propose to dilate upon the observations of the officers that have provided that information. 55It is clear that the prisoner's assistance in the past has been of great value in identifying the manner in which the defrauding of the bank occurred and has filled many gaps in the police understanding of development matters. It is clear that the prisoner's initial interview with police and the information therein contained has enabled the prisoner to subsequently arrest relevant people. In fact within the sealed material there is a chronology of events which reflects upon the impact of the prisoner's cooperation from 2 September 2010. 56Furthermore not only has the cooperation been valuable in the past but it has been extensive. As I have said not just confined to the initial interview but providing a further statement signing the undertaking to give evidence against those others that I have named. 57The Crown has indicated in the submissions to this Court that it is expected that all the co-accused will be required to give evidence in one trial. There is always the possibility of separate trials. No comment was made by counsel for the accused about what had been put to me from the bar table about this matter, but in considering the appropriate discount for the cooperation of the prisoner, including an assessment of past and future cooperation, I accept the possibility of the need to give evidence on more than one occasion will arise in the future. 58A calculation of the discount in the context of also requiring myself to give the prisoner a discount for the utilitarian benefit of a plea of guilty has taken me to a range of authorities are R v NP [2003] NSWCCA 195, R v El Hani [2004] NSWCCA 162 and also other judgments including the decision of the Court of Criminal Appeal in R v Joseph Sukkar [2006] NSWCCA 92 and R v Waqa (No 2) [2005] NSWCCA 33. 59In the context of the submissions that were made by the learned counsel for the accused it was agreed or accepted in his submissions that a discount, including a discount for the utilitarian benefit of the plea of guilty would rarely be beyond fifty per cent of the otherwise appropriate sentence and that discounts beyond that range would be for truly exceptional or extremely valuable levels of cooperation. 60It was initially put in submission that the cooperation was of an "extremely high order", but after some discussion about that matter with learned counsel for the accused the submission was altered to accept that if not of an extremely high order it was cooperation of a very high level of value and assistance and will be of course very high value of assistance in the future, if and when the prisoner is required to give evidence against his co-accused. 61The prisoner's cooperation was relatively timely and I accept was complete. It is not of course an exceptional case of cooperation such as a person volunteering information about criminality of his own and others absent a police investigation. I bear in mind of course, although it is a very minor matter, that when first spoken to by bank investigators the prisoner was not cooperative and in fact denied, as I understand the facts, any involvement in any fraud. I have already pointed out that within a week he gave an electronic interview when he had a right to silence which set in motion the extent of cooperation which I have referred to. 62In that manner I simply quote what material is available to me from the investigations, that the "information provided by the accused...was the key factor in the identification and arrest of various people who were 'significant persons of interest in an organised crime group'." 63Whilst the prisoner facilitated that group the prisoner was not to be regarded as a member of that group. 64In passing, I point out that since the proceedings last Friday when I reserved to consider an appropriate sentence I have been provided with some details as to the criminal histories of the "co-accused". Mary Ji has no convictions for dishonesty but has a minor matter for which she received a s 10 order, it would seem to perhaps arise from a time immediately before her arrest in relation to the current matters. 65Mr Kabbout has a number of convictions including convictions for obtaining money or property by deception. 66Mr Musumeci has no prior convictions at all. 67Mr Tooth has an extensive history of dishonesty and has served various terms of imprisonment for making false statements, using false instruments, obtaining financial advantage by deception and other related crimes of dishonesty. 68I was referred in the helpful submissions of learned counsel for the prisoner to the case of Tsakonas v R [2009] NSWCCA 258. This case was brought to my attention to provide some assistance as a "comparative case" and also to drew my attention to some discussion by Justice RA Hulme about s 193B(1) Crimes Act for sentencing purposes, this being a crime where few people have been sentenced to this time. 69I note what his Honour said about the character of offence and the limited availability of statistics given few people have been charged, particularly at [60], [61] and [62] of the judgment. So far as Tsakonas was concerned I note the sentence imposed upon him in the context of the discount for the plea of guilty as providing some assistance. However, the crime committed by the prisoner compared to Mr Tsakonas was different in a range of ways. It might be fairly said that Mr Tsakonas had a leading role in the commission of the particular offence pursuant to 193B(1) of the Act. It might also be said that Mr Tsakonas was also a person with many more convictions than the prisoner. On the other hand, in the context of the sum of money involved in this particular case, one could not forget the continuing and substantial role of the prisoner in facilitating the fraud and of course that very significant matter not alluded too initially in the submissions, that was the breach of trust occurring by reason of the prisoner's role as an employee of Westpac. The prisoner would not have been able to commit this crime but for that trust reposed in him. 70The counsel for the prisoner provided an outline of submissions which I have taken into account. It provides some greater detail than I could divine from some of the other material provided to me of the prisoner's employment history and the like. I am prepared to accept the summary that Mr Haverfield for the prisoner set out in his document. 71I am required to in sentencing the prisoner have regard to s 3A Crimes (Sentencing Procedure) Act (1999) and the various purposes of sentencing therein contained. Whilst I agree in this case I must have regard to consideration and give weight to the promotion and the rehabilitation of the prisoner and whilst I accept that the prisoner's imprisonment will itself be a significant deterrent to him to commit like offences, I also as I earlier indicated concluded that this is a matter where particular emphasis must be given, given the seriousness off the allegation upon appropriate punishment and deterring others from committing similar offences, in other words general deterrence. I do not believe the community needs protection from the offender. He is not a threat to the community, however his conduct should be denounced and he should be made accountable for what he has done. 72The parties did not dwell upon s 21A matters beyond the general principles that are to be taken into account pursuant to s 21A(1). So far as aggravating factors are concerned it might fairly be said that whilst the offence was committed in company and the offence was committed for financial gain and the offence was a breach of trust, as I have emphasised several times, these various matters as they might arise as separate aggravating factors are inherently connected to the facts of the case and I believe have been adequately addressed in my earlier remarks. 73Turning to relevant mitigating factors by reference to matters raised in the submissions, I accept the submission of counsel for the accused that the prisoner is likely to reoffend (s 21A(3)(g)) that the prisoner has good prospects of rehabilitation (see sub-para h), that the prisoner has shown remorse relevantly for the offence (sub para (i)) that his plea of guilty is itself a mitigating factor. For that he also receives the discrete discount and that the prisoner has provided assistance pursuant to s 23 which is a matter for which he will receive a discrete discount. 74With regard to s 23 matters the prisoner has provided and undertakes to provide significant useful assistance to the authorities. He has provided in the eyes of the Crown, and I accept, truthful, complete and reliable information. He has provided both statements and undertakings to give evidence. His assistance was essentially very timely, particularly leading to the arrest of other people. I accept that he will suffer harsher custodial sentences as a consequence of his assistance, although I have no direct evidence of this. Clearly he will need protection whilst in custody and that his assistance relates to the offence with which he has been sentenced and there is no suggestion that he has received any other benefit such as a dropping of charges in relation to other criminal conduct exposed in the facts. 75As I have said in the context of the authorities which relate to this matter, many of which I have not referred to, I have determined that the total discount to be provided to the prisoner upon the otherwise appropriate sentence for the combined consideration of the utilitarian benefit and the cooperation should be fifty per cent. 76It was submitted that the discount could be above fifty per cent, that is by the counsel for the accused. The Crown submitted that it could be no more than fifty per cent. I should point out that learned counsel for the accused who very skilfully represented his client did cite some cases that pre-date the Thomson and Houlton discount, one that I actually appeared in the Court of Criminal Appeal, the matter of Behar. I do not need to expand upon the calculation of discounts for cooperation in more recent years but I just make the observation that cases such as Chu and Behar (from 1998) which might suggest in a previous time a greater discount than currently is available, were cases which involve discounts for cooperation when the discount for the plea of guilty was not separately calculated as it was required to be done under Thomson and Houlton, Behar being decided in 1998 as was the case of Chu. The case of Thomson and Houlton being decided in 1999. 77Be that as it may the range of discounts available are well known and whilst I accept that a discount beyond that of fifty per cent may be appropriate in a particular case, all things being considered this is not that case. Of the fifty per cent discount I have calculated that twelve and a half per cent of the total discount upon the sentence, that is on my calculation one quarter of the discount provided, should be ascribed to future cooperation and the same proportion should be ascribed to past cooperation. 78One of the points made in Waqa was that whilst the approach favoured by Hodgson JA in R v NP [2003] NSWCCA 195, of a staged discount of utilitarian benefit then cooperation may lead to a greater sentence than a combined discount, the combined discount has the advantage of ensuring that if there is no cooperation in the future, the adjustment to the sentence will be greater than it would be if the cooperation was calculated from a figure after a discount has been given for the utilitarian benefit of the sentence (see [10]-[11] of Waqa). 79The prisoner in my view is entitled to a finding of special circumstances pursuant to s 44 Crimes (Sentencing Procedure) Act 1999. In my view he will need an extended period of supervision to assist him to adjust to community living and particularly receive counselling and direction in relation to personal financial management and his associations. 80I have pointed out that the evidence and the Probation and Parole Service report do not point to significant criminogenic matters. However the report does say that an individual case plan would include strategies to monitor the prisoner's employment and any related financial dealings. Certainly entering his first term of imprisonment, which will be quite a shock to him, he will need much professional assistance on his release in that regard and no submission was put by the Crown that I ought not find special circumstances. 81It was suggested by learned counsel for the prisoner that I could consider a term of imprisonment that might lead to a consideration of s 12 Crimes (Sentencing Procedure) Act 1999. Even allowing for an appropriate discount it was quite clear to me late on Friday afternoon, not having fully considered the matter, that any starting point of any sentence allowing for any reasonable discount would not lead to a sentence of two years or less and thus, that was not a realistic matter to be considered. However as an indulgence to the prisoner, notwithstanding the fact it was clear I had to sentence him to a term of imprisonment, I was prepared to permit him to be on bail up until the present time to get his affairs in order. 82I trust without the benefit of any transcript from last Friday I have covered all the relevant matters that have been raised but I can assure both Crown and defence I have taken into account the submissions that have been put. 83One matter that I might just clarify from the facts. Whilst in the facts it was suggested that the people that the Crown would suggest were known to the prisoner with whom he shared accommodation had left Australia, it may be, and I will check this against the facts that the timing of them, the departure from Australia may not have been before the relevant activities were taken by the prisoner in the character of "preparatory acts". But as I have earlier indicated the issue of preparatory acts is not a significant matter in the assessment of the criminality of the prisoner. The criminality of the prisoner is to be measured really in the context of his conduct from the time that he first met Mrs King and fell under the sway of Ms Ji. 84Is there any pre-sentence custody Madam Crown? 85SMITH: No your Honour. 86HIS HONOUR: You sir are sentenced to a term of imprisonment of three years and three months. This represents a discount upon the otherwise appropriate sentence of six years and six months, of fifty per cent. 87I fix for your sentence a nonparole period to be served by way of imprisonment of one year and nine months, that will commence today, 16 May and will expire on 15 February 2014. 88I fix the balance of sentence of one year and six months. That will expire on 15 August 2015. 89Because it is a sentence of greater than three ears I cannot direct that you be released to parole and the expiry of the non-parole period, that will be a matter for the Parole Authority. Are there any other matters to be corrected or changed Madam Crown. 90SMITH: No your Honour. 91HIS HONOUR: Mr Bothra the officers are here to take you into custody. If you need any special attention to your protection the officers will take those matters into account and take the necessary steps. o0o DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 September 2012