HIS HONOUR: I want to say from the outset in this matter that the sentencing of this particular prisoner has presented some difficulty for the Court. I do not in any way claim to be anywhere near perfect in terms of determining appropriate sentences for offenders, but the difficulties in this matter have arisen primarily because of the extended period of time since the offending and, dare I say, the uncertainty of events since the offending in terms of attributing any responsibility or blame for the extensive delay that has occurred.
According to the chronology provided by the Crown, the prisoner pleaded guilty on 3 August 2016 to a charge alleging that he, the prisoner, between 24 November 2001 and 1 August 2002 at Sydney and elsewhere in the State of New South Wales with Andrew Alfar and others conspired together to dispose of property, at the time of knowing that the said property had been stolen. The matter on the Form 1 is an allegation of conspiracy to cheat and defraud insurance companies, the facts of which I will come to shortly.
Dealing with this issue of delay. The prisoner, although alleged to have committed this offence between late November and 1 August 2002, travelled to Jordan with Andrew Alfar, his son, on 2 June 2002. Whilst the prisoner was absent from the country various investigations occurred leading to the arrest of a number of people including the prisoner's wife, who I will come to in due course when I deal with the circumstances of her sentencing, the son of the prisoner, Andrew Alfar, and other people. The prisoner obviously whilst in Jordan must have become aware of the developments here in Australia and the arrest of family members.
He was ultimately arrested on 19 January 2003 in Jordan. He was released on bail but his passport was seized and he was prosecuted or investigated in relation to alleged offences that in some way had connection with the criminal conduct which I will detail involving the shipment of car parts and cars and related items to Jordan over a period of time up until the middle of 2002.
The chronology provided by the Crown, which is exhibit B, then sets out a range of events happened, some of the matters contained in the chronology are based on information provided by the defence.
Ultimately I have absolutely no "reliable" or accurate information, with no disrespect to the lawyers who sent a document to this Court, as to precisely what happened with the prisoner whilst in Jordan. There is an understanding to be had that the prisoner was prosecuted and that he was sentenced to a term of imprisonment, but precisely how long he spent in custody, for what crime and the precise relationship of it with the principal offence with which I am concerned, that is the matter of the indictment, is not entirely clear.
It comes to pass, thus, that there is no evidence before the Court of sufficient reliability to conclude the Court can properly in any way take into account the time, if any, spent in custody by the prisoner. But one thing is clear from all the evidence available to the Court, including the chronology and other material produced both by the Crown and the defence, that is the prisoner was out of Australia at least up until around about 2012 or 2013 during which time co‑conspirators had been convicted and sentenced and had served their terms of imprisonment and during which time, as I would understand it, the prisoner grew older and acquired a number of medical conditions, as I would understand it, that he currently has to deal with and will need to deal with in custody.
The prisoner was arrested on 18 June 2013. I point out in relation to the circumstances of his arrest, as it may be relevant to understanding the circumstances in which he came back into this country and as it may assist to understand reasons for his absence away from the country, that when confronted with investigating police he denied his true identity, a subterfuge which obviously did not prevail because there was some sort of machine there that could check his fingerprints against police records. However, he was then arrested and charged but granted bail.
According to the Crown he spent no time in custody in Australia prior to appearing before this Court at this time. His prosecution meandered through the courts in a range of ways. He was not committed for trial to the District Court until either 12 August 2015 or 10 September 2015, the chronology is somewhat inconsistent in that regard. The matter was adjourned for arraignment ultimately to 25 February 2016 at Parramatta and then was fixed for trial at Parramatta, but the venue was changed to the Sydney District Court before the trial date at Parramatta was reached. There was a pre-trial conference on 1 July and ultimately the prisoner pleaded, as I said, on 3 August 2016. But on this occasion to what was described as "a new indictment" and the matter on the Form 1, which had previously been the subject of an indictment, was dealt with on the basis that it would be taken into account in relation to the principal offence.
The issue of delay of course is very much at the heart of the submissions that have been made on behalf of the prisoner. But that also is a matter properly raised by the Crown as requiring consideration by the Court. I will come back to those principles shortly.
With regard to the offence to which he has pleaded guilty, it is a common law conspiracy so the maximum penalty is 'at large'. There is some suggestion of what the penalty may be by way of jurisdictional limit in the Local Court, but when one has an understanding of the facts there is absolutely no prospect of this matter ever being dealt with in the Local Court, and as I would understand it. Likewise the matter on the Form 1 is a matter where the maximum penalty, if prosecuted on indictment, is at large. It is to be fairly said on the facts of the matter that whilst a conspiracy to cheat and defraud was a planned offence in a range of ways, it is dwarfed in seriousness by the principal offence, having regard to the way in which the facts have been presented to the Court.
I have already pointed out the prisoner was not on bail. I am informed by the Crown that the offences with which I am concerned were not committed whilst the prisoner was on bail or subject to any other form of conditional liberty. I am given details as to the sentences imposed on the co‑accused and I will come back to those sentences because I am required to analyse the judgments that were given by the relevant sentencing judges in much more detail than the summary provided by the Crown.
The prisoner is known by various names. He was born on 23 May 1959, which would on my calculation make him now 58 years of age. At the time of the offences, however, he was between 42 and 43 years of age. Therefore he was a substantially younger man.
A 'strike force' was established to investigate car theft, rebirthing and exportation of stolen cars and parts to overseas and destinations, in particular Jordan and Lebanon, by what are described as "organised crime syndicate.
Between 24 November 2001 and 1 August 2002 the accused and his family, namely, his wife Awatef Alfar, his younger daughter Julie Alfar and his sons Andrew and Michael Alfar, were the principals, according to the facts, in a continual criminal enterprise organising the theft of motor vehicles. Vehicles were stolen, dismantled, rebirthed and shipped to the overseas destinations mentioned.
A number of other people were involved in the organisation with a variety of roles. These roles were integral to the operation of the Alfars. The roles involved the stealing of motor vehicles, the purchasing of wrecks from the auctions, the cutting, grinding and transferring of identification points such as engine numbers, chassis numbers and compliance plates, the transfer of stolen bodies to rebirths, the disposal of stolen motor vehicle parts and other items relating to motor vehicles.
The issuing of what are described as "blue slips" to enable registration of the rebirthed vehicles was often done by the co‑conspirators. Those various people included Khalad Abbas, Emad Jaber, Yaccoub Ghandour and Khalad Alfar who purchased a business that was controlled at one point and for some period of time by the prisoner, known as Rizen Smash Repairs.
I should point out as I go through these facts, I need to deal with them in greater detail than any of the other sentencing judges bothered to do. The facts tendered here are 41 pages in length.
Motor vehicle rebirthing involves the purchase or obtaining of a motor vehicle wreck, normally through auction. These vehicles have been previously assessed as either irreparable write-offs or statutory write-offs. A reparable write-off is a vehicle that, whilst believed by insurance assessors to be repairable, would be financial unfeasible to repair. A statutory write-off is a vehicle that is assessed as being unrepairable. An identical or similar vehicle is stolen and the identification points from the wreck are transferred to the stolen vehicle. These points include engine/VIN chassis numbers. A blue slip is obtained for the rebirthed vehicle, generally from a complicit issuer, and the vehicle is registered. The new vehicle is then sold through car yards, privately or the 'Trading Post'. On occasion the rebirthed vehicles are transported overseas in shipping containers.
When shipped overseas, some form of documents were required to indicate that the property/vehicles were not stolen. When there was difficulty in getting a number of vehicles through customs, and numbers needed to be altered. The prisoner would send the original engine/chassis number to Michael, the son, or Awatef in Australia. This number would have small alterations done to it, as described in the facts, so as to avoid a check by the authorities. The result would then be sent back to the prisoner and he would make the necessary alterations to the actual vehicle. The clean REV's certificate would be sent to the prisoner.
The transportation of goods overseas took place in the following manner. A 40-foot soft top shipping container was ordered by the prisoner through a man called Tarek Hamze of United Cargo. Hamze obtained the containers from a man at a business called Maersk. The container was then delivered, usually by a person known as "Steve" from a particular transport company at the location required. The prisoner, his family and other associated would pack the container with stolen cars and car parts, and then contact Hamze to inform him the container was ready for shipping. Hamze, from his business, would then submit what's called an export entry application. Once that application was processed and passed, an export clearance number or ECN would be generated. Hamze would then arrange for the container to be transferred to the wharves.
Between 23 December 2000 and 11 April 2002 the prisoner shipped 20 containers overseas to Jordan. The vast majority of these consignments were consigned by Diamond International O'Rings Pty Ltd, purporting to contain auto spare parts or similar. I pause to point out, quite properly, that I am not sentencing the prisoner in relation to that criminality. These facts were presented to me without objection as providing a context for the particular matters with which I am concerned.
This particular company, which I will refer to as Diamond International, was registered to the prisoner at his residential address in Horsley Drive, Horsley Park. There were two phones connected to this address in the name of Diamond International. The phone numbers given were subscribed to Rizen Smash Repairs or Diamond International at the prisoner's home, being the address at Horsley Park. The prisoner was a director of Rizen Smash Repairs at the time of the consignments. Four of these containers which were not seized are identified in the facts, setting out the container number and the description of the contents.
It is alleged that the 20 containers contained a number of stolen motor vehicles, some of which are referred to in telephone interception material between the prisoner and members of his family. In that regard there was an extensive telephone interception exercise undertaken and the facts set out a number of details from particular calls on particular dates at a particular time.
The intercepts reveal that there were various calls before the prisoner left for Jordan in early June of 2002 between the prisoner and his associates in Jordan, which related to containers that were sent by the prisoner. There were other international calls intercepted where the prisoner is heard discussing the contents of three containers then recently sent to Jordan, money owing on the containers so that they could be released, and issues with the bill of lading in relation to one specific container. This bill of lading indicated, as an example of the arrangements, that there were two vehicles inside the container. However, when the container was checked there were actually three vehicles, and the facts go into considerable detail as far as those calls are concerned.
So far as the facts of the conspiracy to dispose of stolen vehicles is concerned, only one container was seized. This was a container with the identification number or markings MAEU4030361. This container was booked on 22 February 2002 and various arrangements were made for it to be shipped.
On 6 March 2002 the container was delivered to the prisoner's property at his home address. It was then empty. It was collected from that address on 11 March and on 12 March when Customs became aware of it they conducted their enquiries in relation to what was described as the contents and its eventual destination which was in Jordan. Various enquiries were made by the police to reveal that particular names that were connected with the proposed export were not persons known to either police or RTA records.
The container was taken away by Customs on 3 March 2002 and various items were found in it including a bronze coloured 1989 Toyota Cressida stand which had been cut into pieces with various identification marks on it and revealing that it had been a stolen motor vehicle, a dark blue- coloured 1997 Subaru Impreza WRX sedan, again with various markings on it some of which had been altered or disguised. Ultimately it was discovered that this was a vehicle reported stolen on 14 February 2002.
There was further a black-coloured 2001 Subaru Impreza WRX sedan. It had been, as with the other vehicles, altered in various ways in an attempt to disguise its true identify and ultimately enquiries from the police confirmed the owner of the vehicle had reported the car stolen in Fairfield on 29 February 2001. The owner received an insurance payout for the vehicle of about $40,000.
Further, there was a metallic red-coloured 1997 Mitsubishi Lancer sedan, again altered in various ways, but ultimately enquiries revealed that the identification number of the vehicle corresponded with that of a vehicle reported stolen by its owner on 30 November, it says in the facts statement 2002, I take that to be 2001 given the date the container was searched.
In any event, various enquiries were made by those who had an interest in the container and the Customs officials put them on hold and unbeknowns to the co-conspirators there were various telephone calls intercepted relating to the detention of the container and related matters.
It is said in the facts that thousands of telephone calls were intercepted between the prisoner, his wife, his son, his daughter and other co-conspirators and a large number of these calls related directly to motor vehicle theft, re-birthing, receiving and disposing of stolen motor vehicles both nationally and overseas with samples of those calls set out in the facts too detailed to recount here.
The police investigation was gathering pace however. Presumably various aspects of that investigation were being undertaken at the same time as the telephone intercept operation, the examination of the container and further enquiries as to the contents of the container. By chance, it would seem, on 29 April 2002 police were travelling in Mawson Road Cartwright. It was believed that there was an address in that road that was known in relation to car re-birthing activities and as they were driving by they saw a beige-coloured Commodore parked in the roadway that had been reported stolen. Police observed a tow truck heading in the opposite direction. They performed a U-turn, went back to the premises and observed the two truck driver loaded the Commodore on to the back of the tow truck and drove away. The police intercepted the tow truck, spoke to the driver and understood from him that the Commodore was to be taken to the prisoner's smash repair business. The Commodore was ultimately unloaded, taken to a holding yard. Following upon this there was a search warrant executed at Rizen Smash Repairs on 14 May 2002.
Police executed a search warrant and it was obvious there were a number of anomalies in relation to the identification of vehicles and the facts reveal a number of vehicles were identified including a Toyota Land Cruiser with various alterations to its identity. This was a vehicle that had previously been intercepted by police on the Hume Highway on 22 April and raised suspicions with the police at that particular time. There was a green 2001 Toyota Land Cruiser similarly with various suspicious aspects about its appearance and its identification numbers. A blue Audi was also located without registration in the process of being re-birthed as the facts state and a Toyota Land Cruiser engine and transmission was seized that had been fitted to a white-coloured 2001 Toyota Land Cruiser with a VIN number that indicated that that vehicle had been reported stolen on 30 April 2002.
As I earlier indicated by reference to the chronology, the prisoner and his son, Andrew, travelled to Jordan on 2 June 2002. The purpose of the trip it is said, as evident from the intercepted material, was to sell the stolen motor vehicles and motor vehicle parts that had been previously been sent to Jordan by the prisoner and others. The prisoner's wife continued the operation of the conspiracy assisted by her son, Michael, and to a lesser degree her daughter, Julie. The wife of the prisoner originally liaised with the prisoner in Jordan in relation to various cars and parts and ensured the continuing operation of the re-birthing and disposal process. Her involvement also extended to continuing the operation of the conspiracy by communicating with several other conspirators in order to facilitate the re-birthing of motor vehicles already instigated by the prisoner.
From 2 June 2002 onwards the telephone intercept operation continued relating to and confirming a number of the matters I have already referred to. Andrew Alfar returned to Australia on 15 July 2002 and the prisoner spoke to him from Jordan it would seem about obtaining an ignition barrel for a particular model Commodore. A number of SMS text messages were intercepted during the time the prisoner was in Jordan. They were intercepted through the prisoner's son's phone, a mobile phone number, which was also used by other member of the family and the details of those various text messages confirming matters relating to the conspiracy were identified.
Search warrants were executed on 1 August 2002 at 1598 The Horsley Drive Horsley Park. That is the home of the prisoner and his wife and the facts set out the details of either motor vehicles or motor vehicle parts that were motor vehicles whose provenance was suspect or had been reported stolen and the facts set out a large number of motor vehicles and motor vehicle parts that were identified. A number of other vehicles were seized but not examined. Also found were various papers relating to the registration of vehicles, a blue photo album showing a photograph of a particular motor vehicle which had been reported stolen on 3 January 2001 from a Lexus workshop at Parramatta, a black-coloured folder containing a number of documents, some in handwriting in Arabic, along with other words and numbers written in English. A number of the enquiries made by the police revealed the documents contained details in relation to engine numbers and containers concerning motor vehicles that were reported as stolen over a period of time it would seem between 1996 and 2001. There were also a large number of loose compliance plates found and other items consistent with the re-birthing operation to which I have referred and the premises in question themselves were not a licensed motor vehicle repair shop but clearly connected with the prisoner.
There was also a search warrant executed at 3/19 Hargreaves Place Wetherill Park on 1 August 2002. This was a factory unit opposite Rizen Smash Repairs location. This factory unit was leased by the prisoner and found within it were a number of motor vehicles with either no plates or evidence of having been stolen. There were also a number of vehicle parts, including two motor vehicle engines.
A search warrant was executed at Hargraves Street, Wetherill Park, again on 1 August 2002, the location of Rizen Smash Repairs and various vehicle receipts, quotes, financial and business documents and car parts, as well as a scooter which had been reported as stolen on 14 July 2002.
A search warrant was also executed at Unit 1/85-87 Peter Street, Blacktown on the same date and various items were found related to the conspiracy to which I am now referring. There was a search warrant executed out of premises at Horsley Drive, Horsley Park referred to as the business premises of EJ Automotive owned by Emad Jaber. There were found a sum of cash, a large number of vehicle inspection books, both for blue and pink slip and other items.
Eleven vehicles were identified in this premises showing anomalies in their registration records that had been "blue slipped" by Mr Jaber and I have in the material evidence, the results of that search. Again the detail I need not go into. We will be here for many hours if I was to do that. A number of telephone intercept calls are reported between the prisoner and Mr Jaber concerning their activities.
In June 2013 police received information suggesting the prisoner may be residing in Seven Hills and police had at that stage, as one would expect given the circumstances of the arrest and prosecution of his wife and son, outstanding warrants. As I earlier indicated the prisoner was arrested on 18 June 2013. When asked directly if he was Attallah Alfar he falsely said, "no" and was arrested. I must say, it is extraordinary if I be so bold to say so, that he was granted bail in all the circumstances.
Be that as it may the total value of stolen property located at the various premises that the "Alfar family" used to carry out its conspiracy, as well as the property contained in the seized container to which I referred that was investigated by customs in March 2002, was estimated at $1.229 million.
With regard to the Form 1 matter, the conspiracy to cheat and defraud, the facts state as a result of the investigation into the theft, re-birthing and export of vehicles overseas the Alfar family and other individuals were identified as being involved in the organised commission of fraud offences against insurance companies. These frauds stem from staged motor vehicle collisions organised by the Alfars and others working in concert with them and other people are named and in the facts as set out the modus operandi on which the collisions were staged or damage was fictitiously supposedly repaired and the like thus making insurance claims that were fraudulent.
To facilitate a number of the fraudulent insurance claims either the Alfars or the man, Youseff, referred to in the facts would contact insurance companies claiming to be the owners of vehicles that the fraudulent claims related to or the repairer who would submit the claim on behalf of the insured. The Alfars and Youseff would arrange insurance and make enquiries using other people's details. Other incorrect details would be given when the policies were taken out.
I should point out the facts reveal that in May 2002 the motor vehicle repair business Rizen Smash Repairs was sold to people described as "associates" such as Yaccoub Ghandour to whom I have earlier referred and the man Khalad Alfar. They replaced the prisoner as Directors on 17 March 2002. However, the prisoner and his wife continued to frequent the business after the sale of the business in relation to matters pertaining to fraudulent insurance claims.
On 2 July 2002 the prisoner transferred his motor dealership at Hargraves Place, Wetherill Park, the subject of a search in August of that year, to 3/19 Hargraves Place, Wetherill Park but maintained the same postal address and, of course, the same home address. The facts state that investigations identified the prisoner as the main organiser of fraudulent insurance claims through various insurance companies as a result of staged motor vehicle collisions assisted in this enterprise by his family and the telephone intercept exercise to which I have referred revealed details relating to the matters with which I am concerned.
The facts set out the details of four particular collisions, one on 11 April 2002, one on 18 April 2002, another claim or claimed collision on 29 April 2002 and the fourth, a collision alleged to have occurred on 14 May 2002. I have in the facts detail of what was sought to be claimed in relation to each of those collision. By comparison to the value of property concerned with the principal count, the count on the indictment, these sums involved here whilst substantial are "modest".
The search warrant executed at the prisoner's home on 1 August 2002 found a large number of documents related to fraudulent insurance claims and, of course, further documents were found when the search was conducted at Rizen Smash Repairs of fraudulent quotes for motor vehicle repairs at that property.
That is a very detailed, on one view, dissertation of the facts. But I can assure those required to survey this material at another time if needs be that the facts provided to me are far more detailed than that. I have taken them all into account.
As I earlier mentioned the prisoner was born on 23 May 1959. He has a criminal history that does not entitle him to any particular leniency. He has findings of guilt in 1984 for having goods in custody reasonably suspected of being stolen. I note from his personal history that he arrived in Australia around about 1980 or '81. He was convicted at the Liverpool Local Court in February 1989 of being accessory after the fact to stealing and unsuccessfully appealing against that conviction. In 1988 at the Ryde Local Court he had another conviction for having goods in custody reasonably suspected of being stolen. In 1995 he was convicted of an unauthorised use of a passport and sentenced to a fixed term of imprisonment to date from 9 March 1995. At the Sydney District Court on 1 September 1995 he was convicted of conspiracy to cheat and defraud, received a minimum term of 18 months imprisonment with an additional term of two years. On the same date he was convicted of receiving stolen goods and incitement to steal. There were five counts in all of those respective offences and he was sentenced in total, as I would understand it, to a minimum term of four years six months with an additional term of one year six months by his Honour Judge Solomon. There were a number of matters taken into account on what was described as a 'Form 2'.
He made an application for leave to appeal against the severity of the sentence but the appeal was dismissed by Court of Criminal Appeal in May of 1997. He had no convictions between then and the commission of the current offending although that offending occurred over a period of time.
He has a subsequent conviction in May 2015 to his return to Australia in relation to some traffic matter of modesty. He has a conviction in the Sutherland Local Court in respect of a prosecution under what I would understand to be corporations law for which he was fined. I have his custody record which sets out details of his previous terms of imprisonment.
With regard to other relevant material before me, I have the sentences imposed upon his co-accused. As I said I am required because of the paucity of detail in the Crown cover sheet, that is not a criticism of the Crown but the Crown did provide the judgments, to set out some details in relation to the co-accused that have been sentenced. Mr Mhusen was convicted of conspiracy to cheat and defraud. He was sentenced his Honour Judge Solomon, who had ironically sentenced this prisoner back in 1995. When Mr Mhusen appeared on 13 February 2014 he was sentenced to two years imprisonment with a non-parole period of one year. This is apparently the cheat and defraud offence in relation to insurance companies and has a connection it would seem with the matter on the Form 1 of the prisoner. He was held to be "integral to the conspiracy" but the judge found that he had been "co-opted" by this prisoner. Mr Mhusen pleaded at the first available opportunity, it was his first custodial sentence and he gave evidence before the judge that he was contrite.
Yaccoub Ghandour to whom I previously referred was sentenced to conspiracy to cheat and defraud by Judge Christie. He received a sentence of two years imprisonment with a non-parole period of one year. As best as I can calculate it the sum involved was $29,072, not too far distant from the sums mentioned in the facts in relation to this prisoner. He was held by his Honour to be acting at the behest of others. He apparently lost a business that he can arising out of his arrest but so has this prisoner. His Honour determined that the offender should receive a sentence of two years imprisonment but suspended it. With regard to that order I note Mr Ghandour had relatively clean record.
Andrew Alfar was convicted of conspiracy to dispose of motor vehicles. The same general facts as here applied then as I can best understand the very brief summary of the facts by the sentencing judge. Andrew Alfar was twenty years of age at the time of sentencing or certainly twenty years of age at the time of arrest. He became involved at the age of eighteen. According to the facts found by the judge he left University at the "insistence" of his father. He offered an apology for his conduct. The judge found that his criminal activity was due to the "duress" of the prisoner. He had no prior criminal convictions, it was his first time in prison, he was in protection for various reasons. He was sentenced to three and a half years imprisonment with a non-parole period of eighteen months. There was a Crown appeal. The Court of Criminal Appeal dismissed the appeal. However the Court said the sentence was "very lenient". The Court of Criminal Appeal placed weight on what was described as "demonstrable coercion" of the father. I pause to point out of course these findings of fact in relation to these offenders that might reflect adversely upon the prisoner are findings of fact about which the prisoner had no opportunity to have any input. I merely note them as being relevant to the basis upon which those offenders were sentenced. I cannot conclude for the purposes of sentencing here that those matters can be established beyond reasonable doubt adverse to the prisoner in this sentencing exercise.
The prisoner's wife was convicted of two counts, as I understand it a count relevant to the principle count here and a count of conspiracy to cheat and defraud. The sentencing judge found that her husband was the "moving force" in the conspiracy. She had a minor criminal history, some matters in 1980 and 1992, however she played a significant role and was found in liaising with her husband, particularly when he was overseas. She was "substantially embedded" in the conspiracy, however may not have "known the finer details of the business" but she knew what she was doing was wrong. There was no delay in her sentencing. It was a matter where she pleaded guilty after committal for trial and received a 15% discount. In respect of the offences for which she was to be sentenced she received two sentences entirely concurrent one with the other. She received a non-parole period of twenty months and an additional term or balance of sentence of nineteen months, so I count that as three years and three months in total. She previously had six months of presentence custody before being released on bail and was given full credit for that.
With regard to another man Khalad Abbas I forgot to mention he was convicted of conspiracy to dispose of stolen property and given twelve months imprisonment that was suspended.
I should point out in the Crown's summary of Mr Ghandour's sentence it is said that he received a sentence of two years imprisonment with a non‑parole period of one year. That is an error. My reading of the remarks on sentence of Judge Christie, particularly at p 6 of the remarks on sentence, is this:
"I sentence Mr Ghandour to a period of imprisonment as a fixed term of two years. That period of imprisonment will date from today 17 September 2003 and will expire on 16 September 2005. Normally I fix a parole and a non-parole period but I do not propose to do that. I propose to impose a fixed term because I am going to suspend it anyway, something I very rarely do but Mr Ghandour must understand that if there was any breach of the s 12 recognisance (sic) then he would find himself in one of Her Majesty's prisons for a couple of years".
His Honour was referring to the practice of fixing non-parole periods for suspended sentences which was often criticised by the Court of Criminal Appeal.
I have a body of material from the defence. The prisoner did not give evidence before me. I have a letter from apparently a firm of lawyers or two lawyers in Jordan which refer to an investigation of the prisoner under a particular "penal case" saying that the prisoner was found guilty of an offence which deals with "purchasing of stolen properties" and that he was sentenced to imprisonment for two and a half years. There were no papers available in relation to that matter and that is the best evidence that can be produced. As I said, no criticism of the accused or his learned legal representatives, but that material is not sufficient to be satisfied of the time that the prisoner spent in custody.
I have two psychological reports from Dr Milic. They are, without being unkind, somewhat repetitive. The first report in time is a report dated 4 February 2017, the second report in time dated 15 July 2017 has the same history and summary of medical history and diagnosis but further informs me that the prisoner had been consulting him for "psychological treatment" on a number of dates between 15 December 2016 and 17 July 2017. The reasons for that are because of contemporaneous to examination, observation of depressive symptoms and anxiety. There is no evidence in the report of any mental condition relevant to the assessment of the criminality of the prisoner a number of years before.
There is no evidence that he suffered from a major mental illness at the relevant time. There is no contemporaneous record of him being treated in relation to such an illness, in any event. I accept from the evidence in the reports, as far as the psychologists can take it, that reactive to his circumstances, both his personal circumstances so far as his health is concerned and the circumstances of him being prosecuted, the prisoner has exhibited symptoms of, "major depression". Dr Milic regarded the prisoner as being co‑operative but anxious, a man of limited English, born in Jordan. He had a difficult upbringing, leaving school at 13. Working around the Middle East in various jobs. So I accept life for him in his early years was difficult and there are many difficult occupations that he undertook. His father sent him to Saudi Arabia in 1976, working as a plumbing assistant. I am assuming that part of the time that he spent working around the Middle East, he was providing some financial assistance to his immediate family. He had other employments, working sometimes more than one job. Sometimes only sleeping 2 or 3 hours between jobs. He worked in a shipyard in Dubai. Working there - although there is a typographical error in the report - from 1977 to 1980.
As I said earlier, he migrated to Australia in 1981. He married here, as I would understand it after meeting his wife here. He worked as a cleaner and then undertook training to be a mechanic and opened his own workshop, I gather, sometime in the mid‑1980's or somewhat later. He has three children and eight grandchildren. He said his emotional well‑being declined since his criminality became known. He spoke sadly about his separation from his family between 2003 and 2013, claiming that he was not permitted to leave Jordan because of his legal proceedings. I must say, as to why he was out of the country, there is no conclusive evidence. Although there is a suspicion that he remained out of the country to avoid prosecution in this country I could not conclude that that was so adverse to his interest. It seems on balance, I would have to accept that there were legal reasons for him to remain in Jordan and thus that aspect of the delay, on balance, can be seen to be beyond his control. He reported various health problems. Anxiety about his sentencing proceedings and various tensions within his family, given his current circumstances.
So far as his physical health is concerned, I have a report from Dr Ibrahim. The prisoner has heart problems. As I understood it, last Wednesday he had angioplasty. He has been treated for angina. In fact, he had an angioplasty in 2000, before the commission of the current offence. He has some left‑sided weakness. He walks with a walking stick. He has symptoms of depression, in his recent treatment, and other conditions including diabetes type 2, for which he receives medication and treatment. I am prepared to accept, on his physical appearance and the medical records such as they are, including records of some recent treatments, a coronary angiogram as well as the angioplasty, that the prisoner is a man, notwithstanding the fact that he is not necessarily "an old man", who has significant health difficulties.
There is a report from another doctor, a consultant cardiologist, that says that the prisoner has, "cardiac disease history", and is under current assessment for the, "progression of his current heart disease". That report is 10 July 2017. I have had a reference from his son which I have taken into account, to the extent that I can. He is a co‑conspirator, but having said that, from my understanding of the matter without further evidence, the son after serving his time in prison has led a lawful life. He notes the separation from his father has led to the prisoner missing out on milestones within the family and losses within the family which the prisoner could not share in. Mr Alfar junior says that on his 30th birthday, which would have been, as I would understand the chronology of events, three or four years' ago. He travelled with his wife and two daughters to visit his father who was not then in good health. He said that his father had expressed regret to him. The prisoner's wife, again another co‑conspirator, has spoken of the prisoner's qualities within the family and the effect upon the family of the prosecution of various members of it, and the effect upon the family of the, "travel ban", imposed upon the prisoner.
The mother takes pride in the success of the children since this conspiracy was uncovered and asserts that the family now leads a lawful life. I must say, in the context of what I have said about the issue of delay, there is no evidence before me that the prisoner has, on his return to Australia, continued to commit serious crime. I have taken that evidence into account and the impact of that evidence upon the matters of principle that I am required to consider.
Of course, in this particular matter, s 3A of the Crimes (Sentencing Procedure) Act 1999 is to be taken into account for the purposes of sentencing under that section. There must, in the sentencing of this prisoner, given the character of the offending and its significance, be a substantial element of general deterrence and some degree of personal deterrence although the effluxion of time and the changes in the prisoner's circumstances have lessened the weight to be given to personal deterrence. The prisoner is to be made accountable for his conduct. He is to be given adequate punishment. The damage or harm done to victims is to be taken into account. I am also, so far as I can, required to promote his rehabilitation. In the current circumstances, the prisoner, in my view, does not present a threat to the community. Thus, the protection of the community is not a substantial matter to be taken into account.
It is obvious, having regard to all matters that were raised before in submission, and I have taken all relevant submissions into account that, s 5 of the Act notwithstanding, a term of imprisonment, must be imposed in relation to the principal offence. The critical issue of course was what length that term of imprisonment should be. The Crown provided me with general principles in relation to sentencing for conspiracy offences. It is correct to say that if the conspiracy is to commit but one offence then the penalty to be imposed for the conspiracy, should not in general, exceed the maximum penalty for the commission of the substantive office. However, it is the function of the Court to examine the entire nature of the conspiracy and that is why I have spent some time going through the very complex facts. The Crown suggested to me, it was not the subject of demur from Mr Ainsworth that the relevant, "substantive", offence at the time of the offending - this was in 2002 (I appreciate that there many offences now in relation to re‑birthing of motor vehicles but they did not exist in 2002) was receiving stolen property where the stolen property is a vehicle. The maximum penalty for that is 12 years imprisonment.
I am required to, in considering a multiplicity of offences, note that I am not bound by the sentencing maximum for a supposed related substantive offence. Where the objects of the conspiracy are to be achieved by means which involve the commission of other criminal offences a sentencing judge would be justified imposing a sentence which exceeds the maximum penalty for any one substantive offence. Here I bear in mind that the conspiracy involved a number of acts, stealing of motor vehicles, the changing of their identity and the like giving effect to the principal charge. I have got to have regard to the content and duration and the reality of the conspiracy to assess the degree of criminality involved. Ongoing schemes are generally regarded as more serious than conspiracies to achieve a single object.
A case that is common through these principles is the decision of Savvas (No 2) v The Queen (1991) 58 A Crim R 175. But there are other authorities. The sentencing judge is required to take into account the fact that the object of the conspiracy was implemented notwithstanding the fact that the ingredients of the offence are complete once there is agreement between two or more persons. The conspiracy does not end with the making of the agreement. There is another decision that I am referred to of Tyler v Chalmers [2007] NSWCCA 247, particularly the judgment of Simpson J in which her Honour emphasised:
"The importance of reflecting the organisation or nature of the conspiracy in sentencing rather than combining the sentencing discretion of the identification of the role of the offender by reference solely to the physical acts undertaken by the offender."
I note what her Honour said [83] - [84]. In terms of identifying the seriousness of the offending one might be tempted in the scale of things, allowing for the context in which the offence was committed and given the fact that it was not uncharacteristic, to conclude that this is a 'worst case' situation. I have not come to that conclusion. One can envisage more substantial conspiracies but it is difficult to imagine them. I am mindful also of what the High Court said then Peter Hidden QC in the argument in Veen (No 2) sought on behalf of Mr Veen to identify worse cases than the case at bar, as I paraphrase the majority's words: "One can always conjure up a worse case than the one for sentence."
However, it is clear given the multiplicity of acts, the period of time over which the conspiracy existed, the amount of property involved, the role of the prisoner as the moving force as he has been described in other proceedings, the person giving direction in relation to a range of matters, that this is a very serious offence of its type. If one was talking in terms of objective seriousness by reference to Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 substantially above "the middle range of objective seriousness" although I am not required to utilise those provisions. As I earlier said the criminal history of the prisoner does not entitle him to any leniency.
This brings us back to the issue of delay that I opened upon as the concern I have about the matter and the way in which it is presented difficulties for me. The Crown very helpfully, I trust I have done no disservice to Mr Ainsworth who skilfully represented his client's interest, provided me the decision of Sabra v R [2015] NSWCCA 38. In that judgment particularly [27] through to [38] his Honour Bellew J in his usual articulate and meticulous way surveyed various authorities going back to the decision reported in 1982 of R v Todd, but actually decided in 1979, there Street CJ said at 519 (R v Todd (1982) 2 NSWLR 517):
"Where there has been a lengthy postponement whether due to an interstate sentence, or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him. When in due course he comes up for sentence on the subsequent occasion and to the fact that sentencing for a stale crime long after the committing of the offence calls for considerable measure of understanding and flexibility of approach. The passage of time between offence and sentence when lengthy will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence. At times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."
I point out, as Bellew J points out, Todd was adopted by the High Court in Mill v The Queen in 1988. In the words of the Court:
"The long deferment of the trial or punishment of an offender with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence."
But then there are subsequent authorities cited by Bellew J, that I need not quote, particularly Blanco from 1999, King from 1998 and a Victorian decision of Schwabegger (1998) 4 VR 649 at 659. It is said in Schwabegger essentially, the delay which is not attributable to the offender of course, constitutes "a powerful mitigatory factor". That decision refers to matters such as the uncertainty of outcome weighing upon the prisoner, the lengthy process of "rehabilitation" and other matters. There is also a decision of Gay [2002] NSWCCA 6, where Schwabegger was adopted by President Mason particularly at [17]. I do not need to get into the comparative facts of those cases in terms of the length of delay. But there can be no doubt that there is considerable delay here which I could not conclude was at the feet of the prisoner, at least, up until the time he returned to Australia. Of course, there has been delay since then in the prosecution of the matter. Part of that may well have been the delay caused by the delay in the prisoner entering the plea. But, again, with delays in our Courts and renegotiations in relation to charge forming and the like I could not conclude ultimately that he solely was responsible for that. There is a decision recently of Giourtalis v R [2013] NSWCCA 216 particularly in judgment of the Chief Justice [1787] - [1788] cited again by Bellew J and I take it from the numbering in the paragraphs that that judgment substantially dealt with conviction issues, the learned Chief Justice said:
"There is no doubt that delay in the prosecution of an offence in many cases will be a matter taken into account in imposing sentence on the convicted person...each of Todd and Mill were cases where the delay was occasioned by the offender serving sentences for cross border crimes of the same nature and committed at around the same time as the offences the subject of the sentence proceedings."
His Honour went on to say, "However, the principle is not limited to those circumstances". Thus the judgment of Bellew J went on to adopt what had been said in a decision of Pickard, where Blue J identified the general principles established whether or not there had been unnecessary delay in the investigation and prosecution of the offence, as a factor to be taken into account in favour of the defendant were as follows:
"1. Mere unnecessary delay is not usually a reason in itself to reduce a sentence, although this will obviously depend on the length of the delay and the particular circumstances.
2. Where, because of delay, the defendant has taken major steps in the progress of his life resulting in a change in his or her personal circumstances, the combined effect of the unnecessary delay and the changed life circumstances may play a dominant role in the determination of an appropriate sentence.
3. Further, where, by the time of sentencing, the defendant has undergone rehabilitation, the combined effect of the unnecessary delay and rehabilitation will usually be taken into account in favour of the defendant.
4. The existence of genuine remorse and contrition are taken into account in conjunction with, or as part of, rehabilitation."
Of course in this case there is not a finding I could make of "genuine remorse" as such reflected in the plea. As for the prisoner's rehabilitation I do not have direct evidence of that but there is an inference to be drawn that the prisoner has remained offence free since his return from Jordan and beforehand, subject to being dealt with by the Jordanian authorities.
But certainly there has been, in the context of the constellation of principles adopted by Bellew J and referred to in the various authorities, considerable change, as I have said, in his personal circumstances. Including what I would understand to be substantial deterioration in his health and the inevitable effects of the aging process. I should point out, of course, that the prisoner to my eyes, and I am nine years older than he is, appears to be physically much older than his stated years.
In taking into account the matter on the Form 1 I have had regard to the guideline judgment in Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147. The fact that there are matters to be taken into account on a Form 1 means that greater weight should be given for the need for personal deterrence and the community's entitlement to extract retribution.
As a general rule the entire point of the process is usually to impose a longer sentence or to alter the nature of the sentence that would be imposed if the principle sentence had stood alone. It is wrong to suggest the additional penalty should be small, sometimes it will be substantial, however the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for any matters listed on a Form 1, or to determine an overall sentence that would be appropriate for all the offences and apply a discount, giving appropriate weight to the matters referred to above. The Court stated that, "Deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the principal offence."
All these matters are of course subject to the particular circumstances and are matters of degree. If a judge is sentencing an offender for two armed robberies and in relation to one of the armed robberies there are seven armed robberies on a Form 1, obviously the effect upon the sentence for the principal offence will be very substantial indeed. The Court pointed out the Court is only concerned with the principal offence and the terms of the Act limit the extent to which greater weight can be given to the Form 1; the maximum penalty for the primary offence is one matter, the principle of totality is another. It is rarely appropriate for a sentencing judge to quantify the effect of the sentence by taking into account the Form 1 matters (see [18]-[44]).
In relation to the aggravating and mitigating factors under s 21A, ultimately I believe I have reflected the character of the offending and the summary of the facts as matters that are primarily picked up by the terms of s 21A(1). It could be said that an aggravating factor under s 21A(2) was that the offending was planned or even "organised criminal activity". But it forms part of the factual matrix in my view sufficiently as I have outlined it.
With regard to the only other aggravating factor, it must be said to be a characteristic of conspiracy matters and therefore an inherent element of the offence, that the offending involved, clearly by reference to vehicles that were stolen and the like, multiple victims or a serious of criminal acts. But as I say ultimately that is inherently a characteristic of the offending. I bear in mind that a Court is not to have additional regard to any aggravating factor in sentencing if it is an element of the offence.
With regard to mitigating factors they are few. The only matters I could conclude at this point with the available evidence I have is that at this point of his life the prisoner is unlikely to reoffend and he has some good prospects of rehabilitation primarily because of his age. I note his plea of guilty is a mitigating factor, but for that he receives a discreet discount.
I have determined in the context of the submissions that were made by the parties that I should provide the prisoner with a discount of 15%, upon the otherwise appropriate sentence to represent the utilitarian benefit of the plea of guilty. I have regard to what Mr Ainsworth has said on this matter. The Crown made a concession that such a discount could be given in exercise of the discretion available to me. I believe it should be greater than 10%, even allowing for the timing of the plea, because the plea entered by the prisoner has saved the State a considerable amount of time in proving what might ultimately have been a very strong case against the prisoner. But as has been held on a number of occasions the strength of the Crown case is not a determinative factor in assessing the utilitarian benefit of the plea of guilty.
I appreciate after all of this waiting around by the prisoner in the circumstances I have outlined the prospect of him facing a sentence now of three years imprisonment by way of non‑parole period reflects a substantial penalty. However it should be borne in mind that he had a leading role, in fact the leading role in the conspiracy. If it was not for the fact of his health and his age and the delay, I would have imposed a substantially greater penalty in terms of the total head sentence to be imposed. That should be clearly understood.
To some extent I point out I am additional constrained by the sentences particularly imposed upon the prisoner's wife. I note in relation to the two conspiracies to which she pleaded guilty, she received concurrent sentences. As I understand it there was no Crown appeal. I appreciate the prisoner's role was greater than hers, but she played an active role in continuing the conspiracy the fulfilling his directions back here in Australia whilst he was in Jordan.
I am not suggesting that there is clear strict "parity" that arises by reference to her sentence or any other sentence imposed in respect of any other offender. His son, of course, was in a totally different situation subjectively and in terms of his role in the conspiracy. To some extent there is some constraint upon the ultimate sentence that I must impose reflected in the sentences imposed upon others.
Amongst other matters in this particular case I have got additional factors to consider, which I have already spoken of at some length, including the prisoner's health, his current circumstances, hardships for him in custody which are explicitly and implicitly recognised by me given his age and his health situation, and of course the impact of delay. As Rothman J said in the 2010 Court of Criminal Appeal decision of Jimmy, parity of sentencing is an artefact or an aspect of 'Aristotlean' principles of equality. Like shall be treated alike and the unalike shall be treated unalike to the extent of their unlikeliness on rational and reasonable grounds.
Notwithstanding the many difficulties I have had in coming to a concluded view in relation to this matter, notwithstanding the temptation to impose a greater sentence upon the prisoner, in all the circumstances I have concluded that I should impose the penalty that I have foreshadowed to the prisoner, taking into account those matters that I have identified.
Mr Alfar, could you stand up please, thanks very much. In relation to the offence to which you have pleaded guilty on indictment, taking into account the matter on the Form 1, you are convicted. You are sentenced to three years imprisonment by way of non‑parole period to commence on 4 August 2017, expiring on 3 August 2020. On that date you will be eligible to be released to parole, subject to the rights of appeal of the parties. I fix in your case a balance of sentence of two years and 11 months imprisonment to expire on 3 July 2023. The starting point of the sentence that I have imposed upon you is that of seven years imprisonment. As I said, that starting point has substantially reduced given your changed circumstances since the time of the offending and, of course, the sentencing of your co‑offenders.
I ask that Corrective Services officers, if they do not mind, to recommend that on his return to custody or being taken into custody he should be referred for medical assessment as quickly as possible by Justice Health. He is a man with substantial health problems and will need assessment at the earliest opportunity, particularly in light of the history of heart disease and type 2 diabetes.
You can take a seat, sir, Mr Alfar. Mr Crown, any matters from you -
BROOK: No ancillary matters, thank you.
HIS HONOUR: ‑‑technical or factual?
BROOK: No your Honour, thank you.
HIS HONOUR: Any matters from you, Mr Ainsworth -
AINSWORTH: No, thank you, your Honour.
HIS HONOUR: ‑‑technical or factual?
AINSWORTH: No, thank you, your Honour.
HIS HONOUR: Thank you. Thank you, Madam Interpreter, for being there, it's been a difficult task I realise and I clipped along at a fair pace and I've had a lot to say, which makes it even more difficult for you. I wish I could have delivered a five-page judgment like his Honour Judge Solomon or His Honour Judge Christie. But modern times will not permit that to happen. You're excused. Can you ask Mr Alfar if he understands the sentence.
INTERPRETER: No, I don't understand.
HIS HONOUR: Just explain to him again that he will, as the order currently stands, be required to spend a minimum time of three years in custody before he is eligible for release to parole. I know you're in a difficult position, Mr Ainsworth, as is your client, there are things that you probably want to talk about that you don't wish to talk about in front of the judge.
AINSWORTH: No, I don't think he wants to talk to me now.
HIS HONOUR: Thank you, Mr Alfar, you'll have to go with the Corrective Services officers. Thank you, gentlemen, very much for being patient and waiting.
[2]
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Decision last updated: 16 May 2018