District Court New South Wales Medium Neutral Citation: R v Sachinkumar Ramanbhai PATEL [2012] NSWDC 177 Decision date: 05 April 2012 Before: Cogswell SC DCJ Decision: For the offence of dealing in proceeds of crime worth $10,000 or more - 2½ years imprisonment. To be released upon giving security in the sum of $1000 after serving 15 months in respect of that offence. Catchwords: CRIMINAL LAW - Particular offence - property offence - dealing in proceeds of crime worth $10,000 or more - offender opened bank accounts into which wrongfully obtained money from people's bank accounts was deposited - offender facilitated access to funds by scheme's principal offender. Sentence - relevant factors - objectively serious offence - involved significant amount of money ($42,000) - amount falls just short of making it a more serious offence - withdrawn over several transactions - planned but not to the extent of creating false names - nature and circumstances of offender - no prior criminality - motivation - benefits to offender limited - included return trip to India - plea of guilty - evidence of remorse. Legislation Cited: Crimes Act 1914, s 19AC, 20(1)(b) Criminal Code Act 1995, s 400.6(2) Cases Cited: Regina v Farah (NSWDC, 9 September 2011, unreported) Category: Sentence Parties: Regina (Crown) Sachinkumar Ramanbhai PATEL (Offender) Representation: Counsel: S A Fraser (Offender) Solicitor: R Ferral-Smith (Commonwealth Director of Public Prosecutions) File Number(s): DC 2007/12428 SENTENCE 1I am sentencing Sachinkumar Ramanbhai Patel for becoming involved in a crime to do with the proceeds of crime. What Mr Patel did in late 2010 was to open a series of bank accounts with different banks and at different suburbs in his own name. There was transferred into those bank accounts, from someone else, significant sums of money. Then, over a period of a few days later in the same month, Mr Patel withdrew cash amounting to just over $42,000. Mr Patel has admitted that in withdrawing that cash he was dealing with the money. He has also admitted that he was reckless to the risk that that cash represented the proceeds of crime. 2This activity meant that he was guilty of a crime against the Criminal Code Act 1995 (Cth). He pleaded guilty to an offence under s 400.6(2) of that legislation. It carries a maximum of 5 years imprisonment. 3It was agreed between the prosecution and the defence that the money which had been transferred into these various accounts opened by Mr Patel was effectively stolen from the accounts of innocent people. Someone had set up a scheme of wrongfully obtaining money from other people's accounts and depositing the money into the accounts opened by Mr Patel. 4Mr Patel was not the person who organised the scheme but, as Mr S A Fraser of counsel who appeared for him acknowledged, he facilitated the process of the principal offender getting access to the funds. The benefits which Mr Patel got were fairly limited and included a return trip to India. India is where Mr Patel came from on a student visa in 2008. He was studying in Australia and working in cafes or restaurants and earning a limited amount of money. 5The Federal Police arrested Mr Patel on 13 April 2011 and he has been in custody since then. His sentence will date from then. After some negotiations with the Commonwealth Director of Public Prosecutions he pleaded guilty to the crime that I have referred to. 6There is a limited amount of information about Mr Patel. A pre-sentence report contains the following summary - "Mr Patel presents a confusing overall picture. His motivation for his commission of the offence remains obscure other than possible financial. It was difficult to confirm details of his circumstances both in India and Australia. He has no prior criminal history in Australia and has been described as cooperative during his time in custody on remand where he has not come under any adverse notice. He would presently appear to be leading an isolated existence in custody, where he receives very few personal visits." 7Mr R Ferral-Smith, who appeared for the Commonwealth Director of Public Prosecutions, helpfully provided me with some written submissions which highlighted the factors which I need to take into account in sentencing Mr Patel. 8Obviously I have to take into account general deterrence - the kind of conduct which Mr Patel engaged in enables other people to launder the proceeds of their more serious criminal activity. As Mr Ferral-Smith said in his submissions (which I mark for identification 1) the commission of frauds and other crimes for profit would be pointless if the perpetrator could not safely gain access to the funds. Deterring persons from engaging in money laundering helps to prevent and deter other criminal conduct. 9The amount involved, namely just over $42,000, is significant. As his Honour Judge Zahra SC said in Regina v Farah (NSWDC, 9 September 2011, unreported) in his remarks on sentence (at page 8) - "The amount of money involved is highly significant as it provides the means of dividing the offences into categories. It is the primary identifier of the maximum penalty." His Honour was referring to s 400 of the Criminal Code. That creates various offences to do with money laundering. I can see from the legislation and I am told that offences will differ by reference to whether the amount involved is $100,000 or more, $50,000 or more, or $10,000 or more. 10Obviously I am sentencing Mr Patel for the crime involving $10,000 or more but it is significant that the amount of money dealt with by Mr Patel falls not far short of becoming a more serious crime. Dealing with property of $50,000 or more carries a maximum of 7 years imprisonment as distinct from the maximum of 5 years which Mr Patel is facing. As Mr Ferral-Smith argued, the amount handled by Mr Patel "is four times the amount required" for the offence. 11Mr Patel pleaded guilty on 24 January 2012. That demonstrates some evidence of contrition and remorse and is generally a mitigating factor. I take it into account on the basis that it shows that Mr Patel was willing to facilitate the course of justice. In due course I will make an allowance of a discount for the penalty that I might have otherwise imposed because of his plea of guilty. 12On the other hand, as Mr Ferral-Smith argued, the case against Mr Patel was strong and the offence was serious. I should add that I do regard Mr Patel's crime as a serious example of this offence, primarily because of the amount involved and the fact that he withdrew the cash over some nine transactions although only over a few days. Mr Ferral-Smith argues that a period of full time imprisonment is the only appropriate sentence in the circumstances of this case and I agree with him. 13Mr Fraser acknowledges the significant gravity of his client's offence. Mr Fraser helpfully took me through several matters which Judge Zahra had referred to as being relevant to sentencing for these sorts of crimes. The source of the money was from innocent account holders and Mr Patel facilitated the process of obtaining the funds for somebody else. The period of time was relatively short and we do not have information about the intended use of the money. The crime obviously involved a good deal of planning by Mr Patel but, as Mr Fraser pointed out, it did not extend to the sophistication of inventing false holders of the accounts - the relevant accounts were opened in Mr Patel's own name. 14Mr Fraser emphasised that in pleading guilty his client had facilitated the course of justice and reminded me that crimes of this kind may consume a good deal of resources in being prosecuted. He reminded me of his client's remorse and contrition and the fact that he had no previous convictions. He, being from India, has no local family in Australia, so that his time in custody has been harder. He is a first time offender. It is difficult for me to agree that he is unlikely to re-offend or that his prospects are good. I do not make any unfavourable findings on those topics but there is very little known about his client. 15I would regard initially an overall sentence of 40 months as being appropriate but I propose to discount that to 30 months namely 2½ years because of the plea of guilty and also taking into account other factors. I would regard a non-parole period of half that period of time, namely 15 months, as appropriate to fix in this case. HIS HONOUR: I will just depart from my remarks on sentence. I will return to my remarks on sentence. 16My attention has been drawn to s 19AC of the Crimes Act 1914 by Mr Fraser. He asks me not to set a non-parole period but to make a recognizance release order in respect of his client, and I propose to take that course. 17Accordingly, the sentence which I impose upon Mr Patel is one of 2½ years to commence on 13 April 2011 and to expire on 12 October 2013. Under s 19AC of the Crimes Act 1914 I make a recognizance release order in respect of that sentence of 15 months commencing 13 April 2011 and the order may become operative on 12 July 2012. HIS HONOUR: Now there are other provisions. What is the- FERRAL-SMITH: Section 20(1)(b) of that Act - sorry can I start again, 19AC applies. The Court must make a recognizance release order in respect of that sentence. Recognisance release order is defined in s 16 as an order made under paragraph 20(1)(b). I'll hand that back to your Honour now. HIS HONOUR: Thank you. Let's have a look. What is the security that I should specify, what do you ask for Mr Ferral-Smith? FERRAL-SMITH: Not less than $1000. HIS HONOUR: I think I will now rephrase the sentence. 18Under s 20(1)(b) I convict Mr Patel of the offence which I have described and I sentence him to imprisonment for 2 ½ years from 13 April 2011 to 12 October 2013. But I direct by this order that Mr Patel be released upon giving security in the sum of $1000 after he has served a period of 15 months of imprisonment in respect of that offence. I note that that period of 15 months will expire on 12 July 2012. FERRAL-SMITH: I wonder if your Honour is prepared to release him upon the recognizance to be of good behaviour for a period of time, for 2 years I would ask. FRASER: I don't wish to be heard. 19The release is subject to the condition that Mr Patel is of good behaviour for the period of 2 years after release. HIS HONOUR: Anything else? FERRAL-SMITH: Not from me. 20All right, Mr Patel, you have got 2½ years imprisonment for that crime. It started when you were arrested on 13 April last year 2011 so it finishes on 12 October 2013. I have directed that you may be released after 15 months, that is half of that. And that would be due on 12 July 2012 in about 3 months time. Once you are released you have got to stay out of trouble, be good for 2 years. If you are not of good behaviour or commit further offences you come back before me and you may go back to gaol. In addition you may be required to pay $1000, because you have breached the promise to be of good behaviour. Do you understand that? OFFENDER: Yes. ********** 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: 08 October 2012