Raine v R

The sentences of the applicant and his co-offender

1. The applicant was charged with dishonestly obtaining financial advantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW). This attracts a potential maximum penalty of 10 years imprisonment. No standard non-parole period applies.
2. The criminal activity involved the systematic defrauding by the applicant of his employer Tabcorp between 16 January 2013 and 17 July 2016. By the time the applicant was apprehended, he had successfully obtained $682,923. The offending ceased on arrest and not before.
3. The applicant also had taken into account on a Form 1 a single offence of possess prohibited drug (0.11 grams of methylamphetamine) in contravention of s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
4. His Honour sentenced the applicant to a period of imprisonment of three years and six months, with a non-parole period of two years and four months commencing on 12 December 2017, with the non-parole period expiring on 11 April 2020 and the head sentence expiring on 11 June 2021.
5. The applicant was sentenced together with a co-offender, his wife, Talanoa Raine ("Talanoa").
6. Talanoa was sentenced to a period of two years imprisonment with a non-parole period of one year and three months commencing on 12 December 2017. The non-parole period expired on 11 March 2019 and the head sentence expired on 11 December 2019.
7. Both were represented at the sentencing hearing by the same junior counsel and very experienced senior counsel.
8. They both pleaded guilty to a charge contrary to the same statutory provision, although as noted by the sentencing judge, the wording of the charges on the respective court attendance notices was slightly different. The sum involved in the applicant's "rolled up" count was approximately $54,000 more than Talanoa and he had been pursuing the fraud for a year longer than Talanoa.

The Facts found by the Sentencing Judge about the "system"

1. At the sentencing hearing, an Agreed Statement of Facts was tendered. The sentencing judge relevantly summarised that Statement, highlighting the role of the applicant, the use he made of the trusted position he held with Tabcorp and the way the deception scheme was designed and perpetuated by him: "The offender Trevor Raine was employed by Tabcorp as Assistant Support Officer from November 2011. Tabcorp or the TAB operates a wagering division with around 2,000 retail outlets in this state. The general system is that a customer who places a bet obtains a ticket which contains both a unique serial number and a barcode. If the bet is a winning ticket a winning dividend is collected by the customer presenting the ticket at a TAB retail outlet. A winning dividend can only be collected in the State or Territory where the ticket was issued. A winning dividend can be collected for a period up to 12 months after the date of the winning event, after which time the ticket expires and the dividend becomes part of TAB revenue. The majority of winning dividends are collected on the day of the winning event. TAB retail outlets include both cashier and automated terminals known as Easy Bet Terminals or EBT for short. A customer can use an EBT to place bets and to redeem winning tickets by scanning the winning ticket. Once scanned the barcode is read and a voucher issued to the customer, this can be presented to a TAB cashier and redeemed for cash. Similarly the TAB operates a bidding system known as Keno. These tickets contain a series of numbers randomly selected by a Keno machine that create a winning series of numbers. Such winning tickets can also be redeemed for cash winnings. TAB operates a computer system that stores information relating to all bets, winning dividends and dividends paid. As part of his duties the offender Trevor Raine had access to the computer system and normally worked nightshift alone. During the period of the offence the male offender, Trevor Raine, used the TAB computer system to obtain information about winning bets and Keno tickets. That information was used by both offenders to create duplicate tickets which were then presented at TAB retail outlets and redeemed for cash. The tickets that were duplicated were those that had not been redeemed by the winning customer for a number of months. The betting tickets that were duplicated were those that had not been redeemed in fact for three months. The offender Trevor Raine searched for and obtained information about the unique serial numbers of the betting and Keno tickets. The unique serial numbers is what causes a winning dividend to be paid and was essential information for the success of the criminal enterprise. The unique serial number on a betting ticket can only be accessed by a TAB staff member on the day the bet was placed. In other words, there was no other way for Trevor Raine to search for unclaimed winnings on any date after the winning event took place. In order to obtain serial numbers of tickets that maybe unclaimed the offender Trevor Raine searched for winning tickets that had not been redeemed very late in the day on which that ticket had been issued. He usually worked on the nightshift and on a large of occasions searched TAB data shortly before midnight for winning tickets purchased that day. The offender then copied the serial numbers and sent them to his home email address. About three months later the offender Trevor Raine used a list of serial numbers to search for tickets that still had not been redeemed. Whilst at work he entered each serial number into the TAB computer system to check if it had been redeemed and this resulted in a list of serial numbers of unredeemed winning tickets. The offender Trevor Raine used the serial numbers to create duplicate tickets at his home, printing them to look like the original ticket. He had templates of replicated TAB tickets and printed the tickets on thermal paper, that is to say the same type of paper used in authentic TAB tickets. He used a similar method to duplicate unredeemed Keno tickets. The tickets were then inserted into an EBT at a TAB retail outlet and a voucher produced. A large number of such winning tickets were inserted at the one time, these were usually for amounts of under $10,000 because Mr Raine was aware the winnings over that sum are in fact reported by the TAB to AUSTRAC, the Government reporting system of cash transactions. The vouchers were then presented to a cashier at a TAB retail outlet where they were exchanged for cash. From 9 January 2014 the offender Talanoa Raine went to TAB retail outlets to scan duplicate tickets into the EBT, collect the vouchers and present them to a TAB cashier. The enterprise commenced in 2013 and was not detected until a complaint was made by a customer in May 2016. The customer was unable to redeem his winning ticket which was several months old because it had already been paid out. An investigation commenced and investigators established that the customer's bet was placed in early December at a TAB agency at Lindfield New South Wales resulting in a win of some $1,638. A ticket bearing the unique serial number was collected from an EBT terminal on 13 March 2016 at a TAB agency in Granville. A voucher was obtained which was deposited in an EBT in early April 2016 at a TAB agency at Northmead. In total 14 winning tickets and vouchers were inserted into EBTs relating to 12 bets placed at different TAB venues on 18 December or 24 December 2015. This information was analysed by the investigator who ascertained the ticket serial number is not widely accessed amongst TAB employees and only a limited number of such employees have access to that information as part of their duties. Investigators discovered that an enquiry had been made about the subject ticket on 27 February 2016 by the TAB employee, this offender, Trevor Raine. He was also working on 5 December 2015 when the ticket was issued. CCTV footage of TAB retail outlets where cash winnings were redeemed showed that on 17 occasions between 2 April 2016, 17 July 2016, as well as on one occasion on 9 January 2014 the offender Talanoa Raine collected cash. Following the seizure of computers owned by the offender Trevor Raine investigators located evidence that he was also involved in duplicating unpaid winning Keno tickets. The facts set out that on 36 occasions between 16 January 2013 and 17 July 2016 cash was redeemed by the offenders in sums varying between $880 and approximately $63,575. On 30 June 2016 telephone intercept warrants intercepted an SMS exchange between the offenders which discussed the criminal enterprise suggesting that the proceeds were going to "pay your house". The facts disclose that in July 2016 the offenders were in the process of purchasing a house at Constitution Hill for $760,000 the contract being settled on 20 July 2016. Further SMS messages were intercepted evidencing the obtaining of various amounts of money pursuant to this criminal enterprise. On 17 July 2016 the offender Talanoa Raine went to a TAB outlet at Wentworthville and withdrew approximately $7,920 in cash from duplicate winning tickets. She was intercepted by TAB investigators in possession of that money and a further voucher for the sum of $1,634. She was arrested and taken to the Parramatta Police Station. During a search of her person and her car a number of duplicate winning tickets were located. At 6.15pm the same day the offender Trevor Raine was arrested at his workplace at the TAB office at Granville. A search warrant of the offenders' premises at Constitution Hill disclosed the following: Firstly, $40,000 in cash. Secondly, rolls of thermal paper on which duplicate tickets were printed. Thirdly, three thermal barcode printers. Fourthly, laptops and other computer devices. Fifthly, ticket templates which were identified on the computer devices. And finally, Excel spreadsheets detailing serial numbers, used and duplicate tickets". [5]

The Grounds of Appeal

1. The applicant raised 4 grounds of appeal. Grounds 1 and 2 are interrelated: 1. The learned sentencing judge incorrectly assessed the role of the applicant by finding that the co-offender was a "lesser partner" or "follower"; 2. The applicant has a justifiable sense of grievance in that his sentence and that of the co-offender lacked parity given their respective roles in the offence; 3. The learned sentencing judge erred in determining the objective criminality as "sophisticated" without taking into account clear indicia of lack of sophistication; and 4. The learned sentencing judge erred in that he mischaracterised the level of responsibility of the applicant's position as an employee.

The Remarks on Sentence

1. The applicant's role in the fraud commenced on 16 January 2013 and continued to 17 July 2016. The sum involved was $682,923. Talanoa's role commenced on 9 January 2014. The amount involved in her role was $629,000. Neither offender had any criminal history prior to this, save that the applicant had a minor and irrelevant matter in the Queensland Magistrates Court. Both were given a 25% discount for their early guilty plea.
2. Reference was made to the applicant having completed a Bachelor of IT at Bond University and a Bachelor of Education, graduating in 2003. He worked for several years as a high school maths teacher and an IT teacher. [6] After working in an (unsuccessful) business with his wife for a short period, the applicant and his wife relocated to Sydney in 2011.
3. The applicant began working at Tabcorp in November 2011, initially casually in technical support but then as a permanent part-time employee in 2014. [7]
4. The sentencing judge referred to a psychologist's report that recorded that the applicant told her that he realised soon after beginning work for Tabcorp that he would be able to access unclaimed winnings, but did not act upon this knowledge until 2013. [8] He also told the psychologist that he saw the fraud as a way of handling financial problems and that it escalated in the last six months. He reported feeling ashamed and embarrassed about the offences and stated that his greatest concern prior to the sentencing hearing was avoiding custody for his wife because "he felt responsible for involving her". [9]
5. The sentencing judge detailed a number of aggravating factors that were particular to the applicant's role in the fraud: "Dealing then with the aggravating and mitigating factors in the Crimes (Sentencing Procedure) Act. The first is whether the loss caused by the offence was substantial. It appears to me that we are talking of losses at the moment of at least $600,000. It is not entirely clear what amount can be repaid. I accept that there have been efforts made by the offenders through their legal advisors to attempt to repay some of that money nevertheless the amount of loss can be described as 'substantial' in both cases, for the offender Trevor Raine more substantial by a reasonably significant amount but also for the offender Talanoa Raine. In terms of the 'abuse of a position of trust' that is an aggravating feature which in my mind is activated in so far as Trevor Raine is concerned. He was employed permanent part-time by the TAB. He had access to their computer system and a knowledge of their systems and as an employee took advantage of not only his learning in IT but also the information provided by his employer to perpetrate this significant fraud. This is an aggravating feature which makes his offence more serious. It does not apply to Ms Talanoa Raine. The offence involved a series of criminal acts which cannot be doubted in relation to Mr Trevor Raine, extending from 2013 to 2016, in relation to his wife from 2014 to 2016. It was clearly part of a planned or organised criminal activity as to which I will say something later. The offence was also committed for financial gain. In my mind the amount which was defrauded, either $683,000 for Trevor Raine or $629,000 - and these are approximate sums for Ms Talanoa Raine, are clearly above the normal offence which one might consider for s 192E(1)(b) offences, and in my view the amount which was gained indicate that the offences were committed by each offender for financial gain". [10]
6. His Honour specifically noted: "Mr Terracini of senior counsel made a number of submissions many with which I agree. He accepted, and I find, that the culpability of Mr Trevor Raine is more serious, it predates his wife's participation and he submitted that Ms Talanoa be seen as 'a follower' in this offence, I think so much is clear from the agreed facts". [11]
7. His Honour also dealt with the submission made by Mr Terracini that the criminal activity was not sophisticated. He rejected that submission with clear and cogent reasons: "Mr Terracini submitted that the offenders were bound to be caught and the criminal activity was not sophisticated when judged against the context of the work of IT professionals. With all due respect to that particular submission, in my view this was a sophisticated and carefully thought out clever fraud. It used the technical and intellectual knowledge gained by Mr Trevor Raine in the course of his university studies, it used the knowledge of the TAB systems, the corrupted templates, computer programs and other matters to in effect fraudulently duplicate tickets on the same sort of paper that the original was printed on. In my view, if this is not properly described as a 'sophisticated offence' I do not know what is, in my view, it was clearly very clever and well thought-out. I do not accept Mr Terracini's submission in that regard that it was 'not sophisticated' in my mind, it clearly was". [12]
8. His Honour noted the remarks of Bathurst CJ in Johnston v R [2017] NSW CCA 53 at [70] to the effect that there is a need to consider more seriously a "rolled up charge" where there has been "a systematic defrauding of the applicant's employer in circumstances where he was in a position of trust".
9. When assessing objective seriousness, his Honour noted that there were six matters to be taken into account; the different sums of money involved with the applicant as opposed to his wife; that it was unclear whether the losses are retrievable and to what extent; the motive was common, being to acquire funds initially for financial reasons; the degree of planning and sophistication which applies only to the applicant because "he was clearly in a position of (trust) with his employer Tabcorp and abused that position"; and sixth, the impact of the criminal offending upon public confidence in the betting system.
10. His Honour concluded: "It is clear that the offender Mr Trevor Raine was the prime mover in this fraud of the persons with whom I am dealing. He initiated it. He continued it for a longer period of time than his wife and introduced her to the fraud. Undoubtedly she became a willing participant and beneficiary of the fraud, however, clearly she was a lesser partner in the offence". [13] ​​​​​​​​​​​​​​​​​​​​​​​​​​​​an​​​​​​​​​​​​​​d: "Senior counsel, as I have said, for the offenders argue that whilst the offences may appear to be on a level of sophistication the reality was that this activity was always going to be discovered. That may be so, the eventual discovery of the fraud but in my mind most crimes are eventually discovered and that says very little about the sophistication involved in committing the offences. The use of the offenders computing knowledge, I refer to Mr Trevor Raine, the means to duplicate the original tickets by the use of thermal paper, the use of barcode printers, laptops and ticket templates, as well as Excel spreadsheets mark the execution of these offences as of a highly sophisticated nature. Furthermore, the modus operandi of withdrawing amounts under $10,000 to avoid the fraud being exposed by the AUSTRAC system also involve sophisticated thought and planning. I accept that the offender Trevor Raine was not a high level executive but the characterisation by his senior counsel as a "backroom employee" in my mind undersells the skills and access that he had to perpetrate this fraud undiscovered over three years. There is no doubt he is not a high level executive, that part of the submission I agree with. A "backroom employee" in my mind belittles what he was and what he was able to do. I accept that Ms Talanoa Raine had a lesser role than her husband, she was a "follower" but nevertheless an active follower and a willing beneficiary of the funds. Accordingly I conclude that the offending by Mr Trevor Raine was serious and that offending is at the midrange of objective seriousness for an offence of this kind taking into account its execution, his breach of trust and the amount it involved. In respect to the offender Ms Talanoa Raine I consider her offending is to be treated at below the midrange of objective seriousness". [14]

Ground 1: The Learned Sentencing Judge incorrectly assessed the role of the applicant by finding that the co-offender was a "lesser partner" or "follower".

Ground 2: The applicant has a justifiable sense of grievance in that his sentence and that of the co-offender lack parity given their respective roles in the offence.

1. It is convenient to deal with grounds 1 and 2 together. In support of these grounds, the applicant emphasised the similarity in role by reference to the overall sums of money collected, noting that the money taken was being used for the joint purpose of purchasing a new home for both of them to live in.
2. The applicant argued that Talanoa is responsible for at least 92% of the overall fraud, and in the period that she was involved, the amounts taken accelerated. This should have led to his Honour inferring that Talanoa was a partner and not a follower in the joint criminal enterprise. It was argued that there were other indicia of equal partnership. There was coordination between the two of them in making claims and collecting proceeds from the TAB outlets. On one occasion one of the cheques was drawn in favour of Talanoa's sister in New Zealand in order to "launder" the money. Talanoa was well aware of the detailed processes that were being used at their home to create the forged tickets and this also underscores the joint nature of the undertaking.
3. There are a number of fundamental problems with this submission. As noted by the Crown, the applicant and the co-offender were each represented by the same very experienced senior counsel (and junior counsel) at the sentencing proceedings. The written and oral submissions proceeded on the basis that the applicant engaged in the offending over a longer period of time and obtained a greater financial advantage than Talanoa. The applicant introduced Talanoa into an activity that he had already designed and established and had pursued, in all its intricacies, for a year before involving her in its execution.
4. At the sentencing hearing senior counsel then appearing for the applicant made specific reference to R v Goundar (2001) 127 A Crim R 331; [2001] NSWCCA 198 at [33] in support of the analysis urged on the court that Talanoa was a "follower": "On some occasions cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring-leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim".
5. In the context of that authority, senior counsel unambiguously submitted that Talanoa can be seen as having had a lesser level of involvement and role in the offending conduct and so the court might rightly find that she joined an ongoing offence as a "follower rather than being a ring-leader or someone abusing some form of inside knowledge". Clearly the reference to "ringleader" and "inside knowledge" was a valid description of the more major role of the applicant.
6. Talanoa's lesser role was emphasised on a number of occasions during the oral submissions on sentence, including disavowing coercion but submitting that if the applicant had not been involved in and had not been associated with Tabcorp, it would have been literally impossible for Talanoa to become involved at all.
7. There is another fundamental problem with Grounds 1 and 2. As stated in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44: [80] "There is a practical expectation that an offender's legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand: Edwards v R [2009] NSWCCA 199 at [11]; Dyer v R [2011] NSWCCA 185 at [49]". … [81] "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]".
8. Counsel appearing before this Court sought to present a completely different analysis and different arguments to the position taken on sentence before Lakatos DCJ. That is not permissible.
9. The sentencing judge assessed the facts with care and made specific findings regarding the respective roles of the applicant and the co-offender. Not only was his Honour correct in concluding that the applicant was a leader and his wife a follower in the enterprise, but counsel appearing at the sentencing hearing for the applicant clearly presented that as the true position. Grounds 1 and 2 are rejected.

Ground 3: The learned sentencing judge erred in determining the objective criminality as "sophisticated" without taking into account clear indicia of lack of sophistication.

1. The applicant argued that there was a lack of sophistication and that the plan was naïve and would be discovered and was doomed to fail. There was a failure to consider the likelihood of Talanoa being seen on CCTV collecting the money, and there was no effort made by the applicant to conceal his electronic signature, thus allowing his detection.
2. This ground must be rejected. The sentencing judge's analysis of this issue was cogent and without error. [15] There was sophistication in both the hatching and birth of the plan and its repeated execution. It required the use of technical skills and high order thinking to identify the loophole in the system and to cleverly and accurately recreate the fraudulent copies repeatedly and for three and a half years without detection.

Ground 4: The learned sentencing judge erred in that he mischaracterised the level of responsibility of the applicant's position as an employee.

1. This ground too must be rejected. As stated by the sentencing judge, the applicant had both skills and the access that came with his trusted position at Tabcorp. [16] The submission that he was a "backroom employee" was rightly rejected. Obviously a skilled technical expert, with the unsupervised access that the applicant had to betting systems and potentially large amounts of unclaimed cash winnings, is in an important position at Tabcorp. It was, as correctly identified by his Honour, the systematic defrauding of his employer where he was in a position of access and trust.

Order

1. The order made on 14 August 2019 was: 1. Leave to appeal is refused.

Endnotes

1. Coulter v The Queen (1988) 164 CLR 350 at 359; [1998] HCA 3.
2. (1988) 164 CLR 350 at 359; [1998] HCA 3.
3. Cf Angre v Chief of Navy (No 3) [2017] ADFDAT 2 at [42]-[43] (Tracey, Logan and Brereton JJ).
4. See also Bailey v Director of Public Prosecutions (NSW) (1988) 78 ALR 116 at 116-117; 34 A Crim R 154; [1988] HCA 19.
5. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 2 to 6.
6. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 8.
7. Ibid.
8. Ibid.
9. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 8 to 9.
10. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 12 to 13.
11. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 14.
12. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 14 to 15.
13. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 17.
14. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 17 to 18.
15. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 14 to 15 and 17 to 18 reproduced at [28] and [31] of this judgment.
16. Regina v Trevor Raine; Regina v Talanoa Moe Tohi Raine, Remarks on Sentence of Lakatos DCJ at 18 reproduced at [31] of this judgment. 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: 06 March 2020