Solicitors:
CROWN: Mr A Cheung
DEFENCE: Mr K Kyriakou
File Number(s): 2015/00089120
[2]
Judgment
HIS HONOUR: Lilian El-Khouri appears for sentence in respect of three offences, being facilitating car rebirthing activity on an organised basis contrary to s 154G of the Crimes Act 1900. The maximum penalty provided for such an offence is 14 years' imprisonment and there is a relevant standard non-parole period of four years.
The second offence is dealing with proceeds of crime, being a red Ferrari F1, contrary to s 193B(2) of the Crimes Act 1900. The maximum penalty provided is 15 years' imprisonment. The third offence is also contrary to s 193B(2) in relation to a maroon Holden Commodore SS Group A; the same penalty is applicable in respect of that matter as the last.
Ms El-Khouri stood trial commencing on 8 May 2018 and the jury returned verdicts on 16 May 2019. The indictment contained one further count, also being a proceeds of crime offence in relation to which she was found not guilty.
As to the facts, I find beyond reasonable doubt, consistent with the jury verdicts, that the offender facilitated car rebirthing activities by providing her brother, Mr Christopher El-Khouri, with two properties, one being her home, located in Major's Bay Road, Concord, and the other a very dilapidated factory, located at 9-15 Bowden Street, Alexandria, for the purposes of conducting certain car rebirthing activities.
It was not suggested in the Crown case that the offender actually engaged in the car rebirthing activities herself in the sense of sourcing, stealing, altering or on-selling rebirthed motor vehicles. There was no evidence at the trial which suggested that she was personally involved in any of those types of activities. Her involvement in the car rebirthing operation was limited to providing the premises in which a step or steps that formed part of the car rebirthing activities were undertaken, and/or by allowing such steps to be undertaken in premises of which she was the owner (Major's Bay Road) or lessee (Bowden Street).
Items evidencing an organised car rebirthing operation were found at various locations across the two properties. As recorded in Exhibit 1A, being a Statement of Agreed Facts, and in particular paragraphs 1 and 2, I accept that their position and condition on discovery suggested that many of the items, particularly those found at Major's Bay Road, had been at that location for a lengthy period.
Various other objects (vehicles, parts and unique identifiers) located in the two properties suggest a reasonably sophisticated car rebirthing operation which was likely being undertaken for some considerable period of time prior to detection. There was no evidence which indicated when or how those vehicles or parts arrived at the properties.
There was also no evidence indicating the condition they were in when they arrived and there was nothing at the Major's Bay Road property that suggested that any car rebirthing activities per se, possibly other than the storage of stolen vehicles, were undertaken at that address. On the other hand at Bowden Street, there was evidence to suggest car rebirthing activities had actually been or were being undertaken at that address at the time the police executed a search warrant on 29 July 2014.
There was no evidence which proved beyond reasonable doubt that the offender had ever been at that property, but it is not an element of the offence that she had attended the premises. I accept that the Crown proved that the offender provided the premises in which a step which is part of a car rebirthing activity was taken. That is, allowed a step that is part of the activity to be taken in the premises of which she was the owner or lessee in each respective case.
In relation to the two offences of dealing with the proceeds of crime, being the red Ferrari and the group A Holden Commodore, I accept beyond reasonable doubt that, while there is no evidence of her receiving the vehicles, she possessed and/or concealed them in circumstances where she knew that they were the proceeds of crime.
In relation to the offences of proceeds of crime, there were two statutory alternatives of "recklessly dealing with" and "dealing with property suspected of being proceeds of crime". However the jury returned in each case a verdict on the count as charged, being that she dealt with proceeds of crime, in each case knowing that it was proceeds of crime. In those circumstances, I accept that the jury accepted that the offender knew that the two vehicles were proceeds of crime. The red Ferrari F1 was very conspicuous in its location within the garage of the offender's home, and must have been obvious to any person who made entry into that location, as a result of its physical shape, covering and prominence, which in my view were obvious from the search warrant video captured on 6 August 2014. I note the vehicle was in apparently undamaged condition, with the exception that each of the registration number plates, "Red F1", had been removed from the front and rear. That vehicle had been stolen approximately five months before on 14 February 2014 from its owner in North Strathfield, being a location not far from the offender's home. The garage itself was clearly in use by the residence, there being a fridge containing food stuffs and a local deli receipt dated 29 July 2014, that is, only a few days before the execution of the search warrant.
The maroon coloured Holden Commodore, SS Group A sedan, on the other hand, was buried in household materials and a thick cover of dust when it was located in the garage. Those circumstances suggest that it had been present at the location for some considerable time. It is probable that it was buried in the household materials as a result of the offender's mother having a hoarding problem. That vehicle had been reported stolen on 6 September 2000, and there is no evidence to indicate when the vehicle arrived at the premises, although it is obvious from the circumstances in which it was found that it had been there for quite some time.
I accept that the combined effect of those two items allows an inference that the conduct of the offender in dealing with the proceeds of crime was not a one-off incident. However she is only charged with the offences in terms of the time period stated in the indictment, that is, in relation to car rebirthing between 28 July 2014 and 7 August 2014.
In relation to the proceeds of crime offences in relation to the red Ferrari and the maroon Holden Commodore SS Group A sedan, in each case the charge was that on or about 6 August 2014, she dealt with the proceeds of crime.
Despite that observation, a relevant sentence consideration is that the two vehicles had been reported stolen and were secreted within the offender's garage, making detection and ultimately retrieval that much more difficult. Clearly the red Ferrari was a vehicle that needed to be garaged out of view.
Apart from the offender's role in providing premises to her brother, the offender was actively engaged in business with her brother through a number of related entities, each of which was involved in various ways in the motor trade. It was through these business dealings that the offender came to be listed as the lessee of the property of Bowden Street, Alexandria. A number of other documents tendered in the trial indicated the offender had held herself out on various occasions as being "Director and Manager" (Exhibit 3), "Sales" (Exhibit 4), "Director Exotic Car Parts Centre" (Exhibit 11) and "Manager" (Exhibit 5).
The offender was not simply a disinterested observer in the activities of her brother, but rather a person who at all material times had an interest, even if only a commercial interest, in those activities.
The material tendered demonstrated that In 2013 and 2014, she took a number of steps to have her brother's involvement in the business recognised by New South Wales Fair Trading (Exhibits 2 and 3). The businesses and their activities trading in used car and car parts, in effect gave a veneer of legitimacy to the activities of Mr El Khouri which might otherwise have come to the attention of police at an earlier stage.
Car rebirthing is a serious problem for the community; it results in significant disruption to the lives of the owners of the vehicles. It is frequently associated with organised crime, and it affects the whole of the community in that the insurance for motor vehicles is higher than it ought to be. The fact that car rebirthing is regarded as a serious offence is indicated by the fact that a maximum penalty of 14 years' imprisonment is provided, and a standard non-parole period of four years' imprisonment.
I note without referring to them the comments made in Hemieh (2010) NSWCCA 189 at 46 to 48 and at para 50, and quoting the High Court decision of IBS (1987) 163 CLR 447.
In respect of this offender, although there is no evidence that she was physically involved in the car rebirthing activity itself, her offending was a significant step in the process, that is by providing premises at which the activity might be carried out. That is in my view a more significant role than someone who simply takes part in the actual physical rebirthing by removing or changing the vehicle's identification number, or defacing one, or otherwise cannibalising a part from a single vehicle.
In respect of the car rebirthing activity and the offending by Ms El Khouri, I find that it falls below the mid-range of objective seriousness.
In relation to each of the offences of dealing with the proceeds of crime, in relation to the red Ferrari and the maroon Holden Commodore Group A SS vehicle, I am of the view that her offending in those instances is approaching the mid-range of objective seriousness.
In relation to the car rebirthing activity, considering the materials found in each of the two premises and referred to in the Agreed Facts, I find that the offence is aggravated by involving multiple victims. However it is almost implicit in relation to an offence of this nature that it will involve multiple victims.
As to subjective circumstances, the offender is now 43 years of age. She was approximately 39 at the time of the offending. She is one of six children, being the eldest daughter of her parents. I accept that they can be described as a classic immigrant family, her parents having worked hard over the years in at times menial jobs in order to support their children, indeed, sending their children to private schools, which was a considerable sacrifice by them.
Material that has been provided to the Court indicates that the offender has no previous criminal history. Also tendered is a psychological report from Dr Cantali, dated 18 July 2018, a patient summary in relation to the offender's father, Fred El Khouri, as at 22 August 2018. But in short, might I say, apart from the report of Dr Cantali, there are nine character references and a St George bank statement for a home loan account in respect of the premises in Major's Bay Road taken out by the offender and her parents.
I note that each of the offender's parents is now substantially supported by the offender, each being somewhat aged and suffering from a number of medical problems, which are referred to in the reports and character references. I have no doubt that the offender, as the eldest daughter, has provided and continues to provide ongoing care and assistance to each of them to a substantial degree.
I accept that in the written submissions provided by Ms McGee, barrister for the offender, an appropriate summary of the character evidence is provided as follows:
Ms El-Khouri is an "honest, upright, sober, mature, responsible woman whose friends are virtuous law-abiding people".
She regularly attends church and continually does acts of kindness for family, friends, neighbours and people in her community (for example collecting magazines for her neighbour with cerebral palsy, providing food for people when they are sick and regularly volunteering with some all-night patrols to deliver meals to homeless persons)
She has been a "go to" person in times of crisis for those in her circles.
She has been a hardworking provider for her family since a very young age at the cost of pursuit of her personal endeavours, for example, taking on parenting roles of her younger siblings and loaning her parents money so her younger siblings could attend private schools.
She is now in effect the sole carer and provider for her elderly parents and is more concerned about the impact of the sentence on them than herself.
I accept that the references and material provided support those assertions.
I accept that she was a person of good character, prior to the commission of these offences. She is clearly held in high regard by her friends and family.
In addition to that material, the report of Dr Cantali, psychologist, indicates that the offender has been suffering from depression and anxiety since the time of the search warrant being executed on her premises. That has apparently continued, at least up to the date of the report in July of this year, how it has continued to significantly affect her in that way is of course in part the responsibility of the offender for proceeding with the matter as a defended trial, rather than admitting the commission of the offences. However, I will take into account that she has suffered some depression and anxiety as a result of the search and her subsequent charging.
When the matter was last before me for the hearing of the sentence proceedings on 3 June 2018, a Pre-Sentence Report was provided under the hand of Shannon Arthurs, Community Corrections Officer, dated 30 July 2018 and on 3 July 2018, I adjourned the matter for the purpose of a Sentencing Assessment Report being obtained. That report is now before the Court and will become part of Exhibit 1, being the Crown sentence summary. The Sentencing Assessment Report was provided by Shannon Arthurs and is dated 5 October 2018.
The Pre-Sentence Report unfortunately includes the following under the heading "Attitude to Offending".
"Ms El-Khouri reported that she took over as director of the business when her brother became a bankrupt. She maintained that she was not aware of any offending taking place. Ms El-Khouri stated "if I knew what was going on I would not have allowed it to happen".
The offender claimed that she had been somewhat short-sighted and was too focussed on the administration side of the business. She stated that she should have been more aware and diligent, and in my view that indicates that the offender is continuing to deny the commission of the offences, and I note that the same quote is contained in the subsequent report of Shannon Arthurs.
The offender has also provided to the Court, as part of Exhibit E1 a seven page document, being a letter to the Court dealing with her upbringing and family background. I note that it indicates the assistance she gave her parents when young in relation to her siblings, her relatively continuous employment since completing high school in various occupations, a significant number of courses at TAFE successfully completed over the years, apparently while she was still working, information in relation to her parent's health and her responsibilities in that regard and what she refers to as the impact of the charges on herself.
While I accept the material contained in the report as being, at least reasonably accurate, I note that there is no expression of remorse or contrition, merely concern for her family and the impact of the matter on her.
In those circumstances, it is impossible to find that there is any acceptable evidence before the Court of remorse or contrition. Despite that statement, I accept that in view of the material before the Court and her lack of previous criminal history that there is, as opined by the Community Corrections Officer, a "low risk of reoffending" and in my view, a good prospect of rehabilitation.
I accept in relation to each of the three offences that the s 5 threshold has been crossed and no submission to the contrary was made by counsel on behalf of the offender.
In my view, general deterrence is a very important factor to take into account in relation to offences of this nature, and despite what I have said about the offender, specific deterrence remains a relevant factor to take into account in determining an appropriate sentence.
I note that Mr Ey, counsel for the Crown, in his submissions on sentence conceded that an aggregate sentence of two years imprisonment or less was within an appropriate range for the Court to consider. Similarly, Ms McGee on behalf of the offender conceded, at para 81 of her written submissions, as follows, "An aggregate sentence of two years imprisonment is an appropriate sentencing result for the present offences..."
I accept that in the circumstances of this matter there are exceptional circumstances in relation to the offender, and that an aggregate sentence of two years is an appropriate disposition. I had formed that conclusion on the occasion when the matter was before me on 3 June 2018, and for that reason adjourned the matter for the purpose of obtaining a Sentencing Assessment Report.
The Sentencing Assessment Report indicates that the offender is suitable for supervision and outlines a supervision plan, and also notes that she is suitable for community service work. I intend to impose an aggregate sentence of two years, which will be served by way of an Intensive Correction Order.
Ms El-Khouri, would you please stand?
You are convicted in relation to each of the three offences. In relation to Count 3 on the indictment, being dealing with the proceeds of crime, the indicative sentence is a term of imprisonment of nine months. In relation to Count 4 on the indictment, being an offence of dealing with the proceeds of crime, the maroon Holden Commodore SS Group A, the indicative sentence is a term of imprisonment of one year. In relation to the offence of facilitating car rebirthing activities on an organised basis, being Count 1 on the indictment, the indicative sentence is a term of imprisonment of 18 months.
I take into account that in my view there is considerable overlap between the charges, even though the Crown framed its closing address in a different fashion, and that an aggregate sentence of two years, taking into account totality and the recognition of the separate offences, is appropriate. Thank you you can sit down.
As I have indicated, you are convicted in relation to each of the three offences, the previous sentences that I express are of course indicative sentences, the aggregate sentence, as indicated is a term of two years to commence today and to expire on 11 October 2020.
The sentence is to be served by an Intensive Correction Order subject to the following standard conditions being:
1. the offender is not to commit any offence while subject to this Intensive Correction Order, and
2. the offender must submit to supervision by a Community Corrections Officer, and
3. the Intensive Correction Order is subject to the offender performing 100 hours of community service work, and that is the only additional condition I intend to impose.
As I have said the sentence commences today, the relevant agency for the purposes of supervision is the Burwood Community Corrections Office, and for the purposes of the implementation of the supervision plan and the community service work, you are to report to the Burwood Community Correction Office on 15 October 2018 at 10am.
Is there any matter anyone wishes to raise?
McGEE: No, your Honour. I think that covers the conditions and requirements under the new scheme.
EY: Likewise, your Honour.
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Decision last updated: 19 February 2019