HIS HONOUR: The prisoner, Rabbeh Hagali, appears today for sentence in relation to an offence contrary to s 193B(2) Crimes Act 1900, particularised in the Court attendance notice. It alleges against the prisoner that he on the 16th day of July 2015 at Maroubra in the State of New South Wales did deal with the proceeds of crime; to wit a $200,000 bank cheque number 653975‑082012‑1027406, knowing it was the proceeds of crime. That is an offence that carries a maximum penalty of 15 years imprisonment, I am informed. It has no standard non‑parole period.
There is a matter to be taken into account of a Form 1. This is an offence committed on 27 July 2015 at Marrickville, alleging that the prisoner on 27 and 28 July 2016 at Marrickville in the State of New South Wales did deal with the proceeds of crime, to wit $500,000, knowing that it was the proceeds of crime (attempt). That Court attendance notice is not very elegantly pleaded. No issue has been taken as to its form. It is an offence contrary to the same provision if dealt with on indictment it carries a maximum penalty of 15 years imprisonment.
This matter came before me on the basis that it was a case that involved what were claimed to be "disputed facts." In order to resolve the relevant disputed fact, which I will identify from the statement of facts provided by the Crown shortly, I heard evidence from a man called Charles Maxwell, who, in a general sense, was a "co‑accused", of the prisoner and I also heard evidence from the prisoner's sister.
I did not hear evidence from the prisoner. I say at the outset this gives rise to a fundamental matter in the context of sentencing practice and certainly in the context of determining disputed facts. I did not receive any evidence from the prisoner in relation to essential matters going to the issue of dispute.
His learned counsel, in written submissions, sought to assert what his client's version of events was but, as the Crown properly pointed out in its written submissions, submissions made to a court from the Bar table in writing or orally, which are not of themselves evidence. In this particular matter, the prisoner has not been in custody before today, so any sentence of imprisonment which I must impose will commence from today. In respect of the matter the prisoner was not subject to any bond, parole or probation at the time of the offending, thus he was not in breach of any conditional liberty.
In relation to Mr Maxwell, who gave evidence before me, he was convicted on 24 May 2017 of an offence contrary to s 192(E)(1)(b) Crimes Act 1900. He was sentenced to ten months imprisonment, suspended pursuant to s 12 Crimes (Sentencing Procedure) Act 1999. Hereinafter I will refer to that as "the Act." He received, in the fixing of that sentence in the Local Court, a discount of 45% for his plea. The matter to which he pleaded being less serious than the offence with which I am concerned with at the moment, carrying a lesser maximum penalty and capable of being dealt with in the Local Court. I have had regard to the remarks on sentence in relation to him.
Another co‑accused, Viviane Daher, was also dealt with in the Local Court on 15 December 2016. She was convicted of an offence, as I understand it, of dishonestly obtain property by deception and had two matters on a Form 1 taken into account of using a false document to obtain property and was placed on a good behaviour bond pursuant to s 9 of the Act for a period of 18 months. She received some discount for the plea and assistance. I have had regard to her remarks on sentence, although I must say her allegations against the prisoner I have not taken into account although she pleaded matters relevant to her role and her relationship with the prisoner.
In respect of the penalties imposed on the co‑accused, of course they are relevant to this sentencing exercise to an extent. A matter of "strict parity" does not arise, but bearing in mind there is a relationship of the offending of Mr Maxwell and Ms Daher to the offending of the prisoner, the penalties imposed on them are of some relevance and act as some constraint, despite the fact that they were matters dealt with in a summary jurisdiction, where the maximum jurisdictional penalty is considerably less than the penalty that would be available if the relevant matters were dealt with on indictment. I have approached the matter on that basis.
With regard to having regard to the matter on the Form 1, I am reminded of the requirements upon me set out in judgments of the Court of Criminal Appeal in respect of the way in which matters on a Form 1 are to be treated. Particularly there is the guideline judgment in relation to such matters in 2002, in which the then Chief Justice discussed the relevance of matters on a Form 1 in sentencing an offender on the principal offence (Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147). The fact that there is a matter or matters to be taken into account on a Form 1 may mean that greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution.
The Court held that the "entire point of the process" may be to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principle sentence had stood alone. The Court held that it was wrong to suggest that the additional penalty should be small. Sometimes it will be substantial, however, of course the sentencing process is only concerned with the principle offence not to determine an appropriate sentence for matters listed on a form 1 or to determine an overall sentence that would be appropriate for all the offences in the context of consideration of principles of totality and the like. Rarely would it be appropriate for a sentencing judge to attempt to quantify the effect on the sentence from taking into account Form 1 matters and, of course, the Court is constrained by the maximum penalty required to be imposed for the primary or principal offence (see [18]‑[44] of that judgment). It must be said, of course, that the matter on the Form 1 here is very relevant contextually to the issues that I was required to resolve.
According to the statement of facts which are described as "agreed facts", but for a dispute in relation to para 20, I am informed that on Monday, 18 April 2011, a South African national called Danny Lee Jones invested $1.5 million with Link Market Services Limited, referred to thereinafter in the facts as 'LINK', in Western Australian Government bonds. 'LINK' acts as a fixed interest bonds and investment registry on behalf of the West Australian Government Treasury Corporation.
At the time of the application for the bonds, Mr Jones held an Australian bank account with St George Bank and these details were registered with LINK. Some years later as the facts explain, on 22 March 2015 the prisoner and Ms Daher, to whom I earlier referred, attended the National Australia Bank (NAB) at Marrickville and the prisoner opened a bank account with a particular number in the name of Ms Danni Lee Jones, using a fraudulent New South Wales driver's licence in the name of Ms Danni Lee Jones and a Medicare card with a particular number. Daher's photograph was on the licence. The prisoner was served by a particular branch manager and phone record inquiries reveal that the prisoner arrived in Marrickville at about 10.12am on this day and left Marrickville at 11.08am that day.
On 28 May 2015 at 4.02pm, an unknown male person called the LINK Call Centre purporting to be Jones and requested a change of bank details form and supplied a new email address and arranged for LINK to email the application to that address. The email address was dannileejones@consultancy.com.
On 5 June 2015 LINK received an application to change their records for Mr Jones' bank account from the St George bank account that he had set up to the "fraudulent" NAB account opened at Marrickville on 22 May 2015. On 15 July 2015, Mr Jones' West Australian Government bonds matured and LINK disbursed $1.536 million plus another $450 via automatic funds to the Marrickville National Australia Bank account.
The following day the prisoner and Daher met in Maroubra Junction. The prisoner gave Daher an envelope containing the fraudulent New South Wales driver's licence in the name of Ms Danni Lee Jones and told Daher to apply for an NAB bank cheque for $200,000 in the name of Charles B Maxwell from the fraudulent Marrickville National Australia Bank account that had been set up on the earlier date that I gave, 22 May. The prisoner told Daher that his "friend" was going through divorce proceedings and wanted to withdraw the money from his wife's bank account in order to hide it from her.
Mr Maxwell was known to the prisoner. In fact, Mr Maxwell had known the prisoner for some many months before this date. At 11.30am on 16 July 2015, footage from the NAB bank at Maroubra showed Daher entering the bank and approaching a bank officer to make the transaction that was suggested. Some details were contained or some documents were contained in an envelope that would have been provided to her by the prisoner.
As a result of the details contained in the envelope and on the basis of the fraudulent driver's licence, the bank officer issued an NAB bank cheque number provided in the agreed facts for $200,000 paid to Charles V Maxwell. This $200,000 was withdrawn from the fraudulent Marrickville NAB account. The bank officer put this cheque and the fraudulent driver's licence in an envelope and handed it to Daher and she left the bank and handed the envelope containing the bank cheque and the driver's licence to the prisoner, who was waiting outside.
I note in the facts that Daher challenged the prisoner as to how her photograph was on the fraudulent driver's licence and the legitimacy of the bank cheque. The prisoner told her that he had her photograph from when they were in a previous relationship and that a friend of the prisoner's had made the driver's licence. The prisoner told Daher that the funds in the National Australia Bank account were not stolen and that this was providing assistance to the real owner hide money from his wife and the Tax Office, which clearly was untrue, although Daher did not know that.
On or about 19 July 2015, the prisoner gave the bank cheque to an associate who I will refer to as 'Said' who operated a cheque cashing business in Lakemba. He asked Said to help him cash the bank cheque. Said took the bank cheque to another broker called a cheque cashing broker called Chai to cash. Chai naturally enough asked why the payee wanted the cheque cashed by a third party cashing facility, instead of banking it himself and Said told Chai that Mr Maxwell was going through a divorce and wanted to hide the money from his wife; the same story, of course, that the prisoner had told Daher. Chai told Said that he thought the cheque was too large and asked Said to have Maxwell produce a copy of his driver's licence and to sign the reverse side of the cheque. Chai refused to take the cheque on that date without the additional identification.
On 20 July 2015, Said returned to Chai with the bank cheque and a copy of Maxwell's driver's licence. Subsequent police checks showed that this is a New South Wales driver's licence actually held by Mr Maxwell. Chai was not satisfied with the accuracy of the signatures on the licence and on the back of the cheque and asked Said to get a photocopy of Maxwell's passport and a signed authority to cash the cheque.
On 21 July 2015, Said returned to Chai with the bank cheque, a photocopy of Maxwell's passport and a signed authorisation to present the cheque. Chai took the cheque to a person called John Papadopoulos, who is a co‑director of Apollo Security Pty Ltd. Papadopoulos agreed to cash the cheque for Chai and stamped the back of the cheque, "Endorsed to pay Apollo Security."
On that same date Papadopoulos went to the Commonwealth Bank at Kingsgrove and presented the bank cheque. The reverse side of the bank cheque now endorsed with a stamp that said, "I authorise this cheque to be paid to Apollo Security," with some identification numbers and a bank account number, with a signature reading, "Charles Maxwell."
On 22 July 2015, Chai returned to Apollo and received $199,000, less Apollo's commission for being involved in this transaction. On 22 July, Chai took the money to Said to be given to Maxwell. Said arranged with the offender to have Maxwell attend Lakemba to pick up the $199,000. The prisoner told Chai and Said that Maxwell was held up in traffic and he could not meet them that day, so the $199,000 was left in the custody of Said and they arranged to meet the prisoner the following day to go to a meeting with Maxwell together.
At about 9pm on 22 July, the prisoner and an unidentified male went to the home of Said, where the prisoner tried to convince Said that the unidentified male was Maxwell and to give him the $199,000. Said did not believe the unknown male was Maxwell and the offender and the male left soon after. It is quite clear on the evidence available to me that that person was not Mr Maxwell and it was an attempt to get the cheque without having to produce Mr Maxwell's body. A fact that undermines the prisoner's 'account' of what happened.
On 23 July, Chai met with Said at his home in Lakemba, where Said gave the cash back to Chai. Chai and Said drove to a location close to the home of the prisoner in Punchbowl to meet with the prisoner and Maxwell. About midday on 23 July Said got into Chai's vehicle. Chai handed the bag of cash to Said, who counted it and removed $1,000 commission for himself, $1,000 commission for Chai, $1,000 commission for the offender and $1,000 commission for a person described as "the builder". The prisoner approached Chai's car and had a quick conversation with Said, apologising for the mix up the previous night, before he walked away. Soon after Mr Maxwell came to the car and got into the back seat. Chai handed Maxwell $195,000 in cash, being the proceeds from the National Bank cheque. Maxwell did not say anything, open the bag or count the money. He took the bag and left.
The particular and only disputed fact in this statement of facts reads as follows: "Maxwell gave the bag containing $195,000 to the offender." I am satisfied beyond reasonable doubt that the bag of $195,000 was given to the prisoner.
Before I get to the subject matter of the evidence that was before me on this matter, I need to, however, put on the record what appears to be the facts in relation to the matter on the Form 1, because it is of some relevance to assessing the hearsay assertions in the submissions of counsel for the prisoner.
At 1pm on 27 July, the prisoner met Daher again, this time in Marrickville. He gave her an A4 piece of paper with handwriting in it and a fraudulent driver's licence with a particular number, which as I understand it was the fraudulent driver's licence produced by her before with her photograph on it. He told her to go into the NAB Marrickville branch and apply to transfer $500,000 from the NAB account that had been set up by the prisoner on 22 May, to a bank in China.
Daher entered the National Australia Bank and approached a particular staff member. Daher handed the piece of paper and the driver's licence to that staff member and asked to transfer $500,000 to the account in China. The details of the account number are written on the A4 piece of paper. After inquiries, the staff member informed Daher that the funds could not be transferred from that account type and would have to be first transferred to a transaction account. Daher left the staff member and said her partner would sort it out. Phone records place both Daher and the prisoner in Marrickville at this time.
On 27 July 2015, Mr Jones, wherever he was, met with representatives of LINK to discuss why his investment had not been paid into his bank account. As a result of these discussions an alert was forwarded to the National Australia Bank, who froze the remaining $1.335 million plus $450 in the fraudulent Marrickville bank account.
At 11am on 28 July 2015, the prisoner met Daher in Marrickville. She went into the Marrickville branch of the NAB under instruction from the offender and approached the same staff member she had spoken to the day before. She attempted to transfer the $500,000 from the fraudulent account to a bank account in China but, due to the alert on the account, a photocopy was made of the false driver's licence and Daher was informed that the account was blocked and she left the bank. I am provided with no other particular details about what happened after that of relevance to this matter.
I come back to the issue of the disputed facts. Mr Maxwell gave a statement to police in relation to the matter with which he was charged and matters concerning this prisoner on 31 January 2017. He came to this Court and gave evidence as to the truth of the statement and he was cross‑examined by Mr Brezniak for the prisoner. I bear in mind, in my assessment of Mr Maxwell, that, firstly, he is a person who has received a benefit for his cooperation with the authorities and is required to live up to the deal that he struck with the relevant authority. I bear in mind that he may be viewed as an accomplice so that there are substantial reasons to regard his evidence or consider his evidence as "unreliable," and I warn myself accordingly.
That having been said, however, I thought essentially he was an impressive witness and I accept in general terms the evidence that he gave. In my view there is considerable support, some of it, of course, circumstantial, for the truth of the claims that he makes directly concerned with the disputed fact that he did not keep the $195,000 that was handed to him on 23 July 2016.
I might, however, just deal with some matters that arose in relation to this subject matter in two sets of submissions that were provided to me by counsel for the prisoner. The counsel for the prisoner provided what could be called supplementary submissions, which are exhibit 5A, making points raised in relation to the issue of the way in which monies were left in the bank account at Marrickville, the position of the prisoner in relation to the account and his capacity to withdraw funds from it, the timing of the withdrawal of the funds of $200,000 and the circumstances in which the prisoner had access to the fraudulent driver's licence before and after the issue of the $200,000 cheque and, of course, before the attempt to transfer the monies to China.
It was submitted to me that, having regard to the matters identified in counsel's submission, it may be seen that Mr Hagali remained able to make further transactions using the same fraudulent driver's licence with the same photo of Daher after as before the amount of $195,000 was "in this submission on behalf of Mr Hagali paid to Ms Maxwell contrary to what is stated in para 20 of the agreed facts in this case". I acknowledge that as correct in the sense that, he had opportunities to remove funds from the account, which he did not do, save for the fact, of course, which is ignored, that he attempted to withdraw $500,000 from the account after, in fact within days, having received the sum of $195,000.
There are submissions made about the evidence of the prisoner's sister, because she was called in the defence case, as being relevant to dispute aspects of the evidence by Mr Maxwell. It was quite self‑evident with respect to the submissions that have been made on behalf of the prisoner that whilst her evidence was of some relevance to the contextual circumstances in which the prisoner came to know Mr Maxwell she could shed no direct light upon the events of 23 July or the events relating to the circumstances in which attempts were made to negotiate the bank cheque. Clearly she had no direct connection with the circumstances of the transfer of funds into the fraudulent Marrickville account and the opening of that account and any attempts to negotiate funds from that account.
It is to be fairly said in relation to the evidence she gave and the exhibits that were tendered in relation to the evidence she gave, that I accept that she was an investor in a corporation with which Mr Maxwell had a connection, that she invested $50,000, that various promises had been made to her in relation to that investment in various ways and that it would appear that the investment, for want of a better description, failed. Of course, on the basis of the evidence presented to me through Mr Maxwell and the sister, I could not conclude one way or the other as to whether she was relevantly "defrauded" of that money or whether it simply was a bad investment or an investment that was badly managed by Mr Maxwell, who was a Director of the relevant corporation in which the funds were invested.
What was clear from that evidence of hers, in conjunction with the evidence of Mr Maxwell, is that the prisoner and the sister to a considerable extent, bearing in mind she claimed it was her money, were considerably aggrieved by the fact that the investment had gone sour. It is clear also on the evidence of the sister, in conjunction with the evidence of Mr Maxwell and the detail of his statement, that the prisoner was able to use the leverage he had on Mr Maxwell, for his failure to fulfil promises or undertakings to try and retrieve the money for the prisoner's sister, to gain an advantage which could be used by him to negotiate the cheque eventually that was drawn in the name of Mr Maxwell. He had access to Mr Maxwell's identification papers at a particular point and it is clear that he sought to use that to his advantage.
It is clear that Mr Maxwell knew that the prisoner and his sister were very displeased about the loss of the monies that had been invested and it was a matter, as I said, about which Mr Maxwell was quite concerned.
I note, if I might step back a moment from the evidence given orally, some significance in the facts that are not disputed, as the Crown pointed out. Firstly, the fraudulent identification used by Ms Daher was provided to her by the prisoner and the facts state that the prisoner admitted that he was responsible for the creation of that. It is also a relevant fact to the disputed fact that the particular bank account that was opened in Marrickville, was opened at the direction of the prisoner. There is absolutely no suggestion that Maxwell, had any role to play in the opening of that account and nothing came out of the evidence he gave to suggest that he had any role in relation to that bank account whatsoever.
It is also significant in relation to the matter on 20 July 2015 when the bank cheque was to be endorsed, as reflected in para 11, it would appear that the signatures which were provided on the back of the cheque purporting to be Maxwell's appeared, at least to Mr Chai, not to be his signature.
Furthermore, by reference to the agreed facts, it is significant, in my view, that on 22 July 2016 the prisoner, realising that he needed to produce a person who claimed to be Mr Maxwell in order to get his hands on the money, produced, at the home of Mr Said, an unidentified male, who was not Mr Maxwell, in order to obtain the money.
Finally, by reference to the agreed facts, it is significant, in my view, of course as I pointed out in the course of the evidence and particularly at the end of the evidence, a matter about which submissions have been made in a supplementary fashion by counsel for the prisoner, that within days of taking delivery of the $195,000 the prisoner was involved in endeavouring to transfer $500,000 out of the fraudulent account to a bank account in China. This was a transaction with which Mr Maxwell had no connection whatsoever, nor was it suggested that he did, for the purposes of transferring money to a bank account in China where there is no suggestion that Mr Maxwell had any connection.
Of course the significance of the matter on the Form 1 as it goes to the matters that were claimed, at least in submission to the position of the prisoner, is this: if it was true, as was "claimed" on behalf of the prisoner that, in fact, Mr Maxwell kept the $195,000 for himself and managed to walk away from the prisoner without the prisoner calling him to account, at the very least to get back the $50,000 which was such a thorn in the prisoner's side and a matter of concern to his sister, it defies belief, if Mr Maxwell was the mastermind, that the prisoner would, within days, be going along to the bank at Marrickville, without having obtained any money out of the $195,000, endeavouring to negotiate some of the balance, that is the sum of $500,000, to transfer to an account in China presumably, although this was not abundantly clear on the basis of the way the case was argued, at the behest of Mr Maxwell.
Further, as I pointed out in the course of submissions, if the money was handed over to Maxwell and Maxwell had made an attempt to walk away with it without providing any direct cash to the prisoner, Mr Hagali had the physical means, he had the motive and he had the responsibility, in a sense, bearing in mind he had done all the footwork up until that point, to stop Mr Maxwell getting away with the money and at least taking what he believed was rightfully his.
In this regard, I come back to the submissions of counsel for the prisoner, exhibit 5. Mr Brezniak, in his usual skilful way, sought to, as part of the submission, to set out what the prisoner claims happened. It is expressed this way: "Mr Hagali says did occur on or after Monday, 18 April 2011.", then at p 1 to 2 in ten paragraphs step by step the submission sets out what Mr Hagali "says did occur" in respect of the transactions that led to the transfer of the money in the account at Marrickville, the attempt to negotiate the cheque for $200,000 and the like.
As I said at the outset, of course what counsel for the prisoner says, "did occur" is not evidence. In fact, apart from the fact that the prisoner and his sister were aggrieved by Mr Maxwell's handling of their investment, there is no support in the evidence for a number of the propositions advanced. He asserted on behalf of his client that in respect of the negotiation of the cheque for $200,000 the funds from the cheque were to "pay the initial investors", and "your funds will be paid in the next cheque." That the prisoner would be likely to accept that as a statement by Mr Maxwell to put the prisoner off before he got access to the money that he believed his family was owed defies belief and offends common sense, with respect to submissions to the contrary.
In any event, there is no evidence of some of the matters identified in the point by point attempt to explain Mr Hagali's position. Thus, with respect to that, the matters that are not the subject of evidence cannot be acted upon by this Court. Particularly bearing I mind, of course, that Mr Maxwell has given evidence, his statement has been tendered, he was open to cross‑examination in relation to the matters contained in the evidence.
I note by reference to the Crown's submissions at para 18, the points that are made there and some of them I have already identified. Firstly, that it was the offender who established the fraudulent account. It was the offender who provided Daher with the fraudulent identity documents. It was the offender who provided reasons for the character of the negotiation of the cheque, the reference to a male friend going through a divorce wanting to hide money from his wife. It was the prisoner who took possession of the bank cheque from Daher after it was issued, that is the bank cheque in relation to the principal offence. It was the prisoner who enlisted the assistance of people to negotiate the cheques and it was only after he discovered that the cheque could not be cashed in the manner in which he sought to cash it, that Maxwell's presence was required. He sought to get around the use of Maxwell in order to have him physically present by producing an unidentified person to assist in the negotiation of the cheque. I have referred to many of these matters earlier.
Mr Maxwell has given evidence about the treatment of him by the prisoner on an occasion some time before the events with which I am concerned that left him afraid and malleable to demands of the prisoner. I accept that evidence, particularly in the context of no evidence to the contrary from the prisoner. I note what the Crown has said about the continuing attempts of the prisoner to negotiate funds in the Marrickville bank account, which I have already noted, particularly his involvement in the commission of the offence on the Form 1.
I note, arising out of a question I asked, that Mr Maxwell had no connection really with South Africa and there was no suggestion or basis for concluding that he had any connection with any bank accounts that money could be transferred to in China. Thus, in those circumstances, Mr Maxwell's account of relevant events not seriously or substantially eroded by the cross‑examination of counsel and the other material contained within the agreed facts, I am satisfied beyond reasonable doubt of the disputed fact asserted in the agreed statement of facts that has been provided to the Court.
The prisoner's criminal history is available to me. It is not a significant criminal history, in my view. He has findings of guilt some time ago in relation to matters of dishonesty. He has findings of guilt in 2004 for possessing implements to enter a conveyance, for which he received a bond for 18 months, damaging property and stealing a motor vehicle, for which he likewise received bonds. He appeared at the District Court about three years later in respect of offences committed about a year and a half later and received nine months imprisonment to be served by way of periodic detention for four counts of stealing motor vehicles and one matter on a Form 1. He has a finding of guilt in 2014 for possessing or attempting to possess a prescribed, restricted substance, for which he was convicted and fined, as he was in 2017 but for an offence that is subsequent to the offending with which I am concerned.
As I said, in the context of the offending that I am concerned with here, I would not regard that offending as significant. I must say, in relation to Mr Maxwell, in addition to the matters about which I caution myself, I am mindful of the fact that he had some findings of guilt in 1985, 86 and 87, including driving with high range PCA in 1987, failing to leave licensed premises and assault in 1986 and negligent driving and supply false information in 1985. More recently, a finding of guilt in relation to a mid‑range prescribed concentration of alcohol in 1994. Those matters, in my view, did not substantially diminish his credibility.
I requested in relation to this prisoner preparation of a pre‑sentence report, because there was a dearth of material in respect of his subjective circumstances, bearing in mind the prisoner was born in September 1978 and thus at the present time, as I would calculate it, would be 39 years of age. This report reflected upon previous supervision by the Community Corrections Service, which I have taken into account. In 2004 his supervision was terminated early due to favourable response. His periodic detention was completed satisfactorily.
He is married with a young child and lives in stable accommodation in the Bankstown area. He is one of five children. It is clear, in the context of his sister's evidence, that he is close to his family and he has led a fortunate life, if that is the correct expression, in the sense that he has had favourable family support. He has only been married for two years and his wife continues to support him.
Interestingly, he attended university after completing high school to study economics, but after two years he went out into the wider world and has worked as a mortgage broker. At the moment, as I understand it, is currently unemployed.
He denied that he engaged in these offences for financial gain. It may be that somebody else was pulling the strings and he was acting on behalf of some other person other than Mr Maxwell, I hasten to say, but in the absence of any evidence apart from what his sister said, and that has only limited significance in my view, it is difficult to find favour with the history that he gave the Community Corrections Service in this respect.
So far as his risk of re‑offending is concerned, it is said to be of "low to medium" risk. The Community Corrections Service reflects upon the stability of his domestic relationships, the acceptance of responsibility for his involvement in these offences, the circumstance that he claimed brought him in to the commission of this offence, being endeavouring to recover money that had been defrauded or lost by Mr Maxwell.
In relation to the submissions that were provided to me by counsel for the prisoner, in the first set of submissions particularly, submissions were made about the facts in relation to the matter. At the time of making the submissions it was said that the prisoner worked for a company in Wetherill Park and was part owner of the business. That does not appear in the history obtained by Community Corrections. Reference is made to his previous history as a mortgage broker and his employment history. I am prepared to accept that he has been in employment in a range of ways. I am prepared to accept he comes from a law abiding family.
He is a formidable man physically, as I earlier said. He is said to be a very good athlete, with skills in archery and is a man who keeps himself fit. He has been subject to reporting conditions, which I have taken into account. I have taken into account, in the context of determining the factual issues in this case, the background of the loss of money by his sister.
There is some history of the Court proceedings. He was arrested on 21 January 2016. He entered his plea of guilty at the Local Court, as I would understand it, after some negotiations, on 24 January 2017. That is quite a lengthy delay. Ordinarily, having been committed for sentence, I would consider favourably the granting of a discount of 25% for the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomson and Houlton.
However, the Crown, in its submissions, did not concede that the maximum penalty for the utilitarian benefit of the plea should be granted, citing the decision of the Court of Criminal Appeal from the learned Chief Justice in AB [2011] NSWCCA 229, particularly that part of the judgment commencing at [30]. The learned Chief Justice pointed out that in the context of assessing utilitarian benefit of the plea of guilty, it may be proper, even on a plea of guilty, to take into account the loss of utilitarian benefit by disputing facts in the case.
In relation to this aspect of the matter, the counsel for the Crown said there should be less than 25% discount provided because of the time that has been taken in preparing the matter as a disputed facts matter. I am prepared to accept part of the Crown's submission, in that I am prepared to accept that the prisoner should not get the benefit of the full discount that would otherwise be available in exercise of discretion, even though it took a year for the matter to negotiate its way through the Local Court. However, the diminution upon the discount to be provided, in my view, is only minor and I have determined that I should give the prisoner a discount of 22.5% upon the otherwise appropriate sentence to reflect, in part, some of the matters that are identified in the Crown's written submissions.
Of course, the prisoner is entitled to dispute facts in the matter. A prisoner is entitled to plead not guilty. It is significant in the context, as I earlier pointed out, of determining the disputed fact, that so many of the surrounding circumstances, which point to the prisoner being responsible and not Mr Maxwell, are matters that are not in dispute. It would seem, although I have not been given the evidence, that they are not in dispute because there is overwhelming evidence to establish what is needed to be established in relation to those facts.
In this particular matter the Court was confronted with resolution of a factual issue in circumstances ‑ with no unkindness to his learned counsel, he is very experienced and very capable ‑ that left the Court with very little, if anything really, to consider, other than the attack upon Mr Maxwell's credibility. If the disputed fact was to be challenged it was a matter that, it seems to me if it had any chance of success, had to have the benefit of some evidence from the prisoner. Of course, if the prisoner had given evidence, there might have been uncomfortable questions asked of him about his knowledge of the circumstances in which the transfer of Mr Jones' money or financial interest in bonds ultimately found its way to a bank in Marrickville with which Mr Jones had no connection.
That does bring me to an aspect of the Crown's submissions. I am not seeking in any way to be critical of the Crown, but it seemed to me that the total funds that were ultimately fraudulently transferred from a bank account with which Mr Jones had a connection to a bank account that this prisoner had a connection, whilst a contextual matter, is not of itself a fact in the matter upon which I can sentence the prisoner.
I can only sentence the prisoner in relation to the particular matters that are pleaded in the principle offence and in the matter on the Form 1. To hold the prisoner responsible as the 'architect', if that is the correct expression, of a transfer of $1.5 million into the Marrickville account, would be to infringe what are sometimes referred to as De Simoni principles. Frankly, if it was the Crown's case that he was responsible, then I am sure there was an appropriate charge out there somewhere in the Crimes Act with which he could have been charged as a separate charge in respect of that particular sum of money.
Clearly, on the facts that are agreed by the prisoner, he must have been aware of the sum of money that had been transferred to the Marrickville account. The fact that he endeavoured to attempt a transfer of a further $500,000 reveals that he was aware of funds that were amenable for retrieval.
In acting in relation to these types of circumstances, people need to be very cautious about how they go about seeking to transfer the fraudulently acquired funds to a 'safe haven'. One would not want to do it all at once to attract suspicion. But the truth of the matter is I can only deal with the prisoner for the offences that he is specifically responsible for and have regard to the other matters as providing some background to the offending that is for the sentence.
So far as s 21A of the Act is concerned, reference is made in the submissions to what is said in the submissions to be a potential aggravating factor of committing the offence "in company with Charles Maxwell". I do not believe the issue of being "in company" is an aggravating factor in this sentencing exercise. There were people with which the prisoner worked in order to obtain the funds or attempt to obtain the funds on the Form 1. One such person was Ms Daher, who has been dealt with in the Courts. Another such person was, of course, Mr Maxwell. But it is the very character of the offending that would require usually other people to be involved one way or the other.
The concept of being "in company" where it is not pleaded in the charge and only a limited number of offences have it as an aggravating factor that can be pleaded, connotes in my mind the significance of a person being physically present in order to give effect to the crime in circumstances where, if not present, the crime may not be committed. An example of that may be a robbery in company. Another example of that might be a sexual assault in company, where the effect upon the victim, for example, would be, it would seem to me, greatly aggravated by the presence of a person "in company" for the purposes of committing the offence.
It is potentially capable of being argued that there were people relevantly "in company" when the prisoner was involved in particular acts. Although I might point out in relation to what was adverted to in the accused's submissions, that the offence concerning the bank cheque for $200,000 was already completed by the time Mr Maxwell, relevantly, was "in company"; that is physically present with the prisoner. In a legal sense that issue does not arise.
In terms of aggravating factors, of course one could say that the offence was committed for "financial reward". But with respect that seems to me again to be an inherent feature of the commission of the offence. One would hardly be running around Sydney negotiating fraudulent funds to the extent of $200,000 for anything other than some financial benefit. I think the facts speak for themselves in relation to the matter. The offending, of course, was highly "planned" and much of the offending was directed by the prisoner but, again, it does not seem to me a matter that needs to be found as a "aggravating factor" under s 21A(2). It is adequately explained by the facts in the case.
With regard to the issue of aggravating factors, before I leave this matter. I am mindful of one other matter that the Crown identifies. The Crown refers to the loss being "substantial". That is one aggravating factor that clearly is established on the evidence. But, again, it is the very character of the offending which is to be taken into account. The fact is that the prisoner gained access to $200,000, or at last count $195,000, to which he was not entitled and it has not been recovered, and the prisoner has offered no explanation for its lack of recovery. I have got no doubt that Mr Maxwell does not have it.
With regard to mitigating factors under s 21A(3), the Crown submitted to me that his criminal history was such that it was not a mitigating factor as such. I am prepared to find to the benefit of the prisoner, but only as a matter of minor degree, that his criminal history is not a 'significant' criminal history, emphasising the word "significant". It certainly gives no indication of the prisoner's capacity to commit the offences with which I am now concerned.
That having been said, in the absence of evidence from the prisoner and having regard to the character of the offending, I cannot conclude that the prisoner is unlikely to reoffend. But I do conclude in his favour that he has good prospects of rehabilitation in the context of what is at the moment his stable, domestic circumstances. Of course, his plea of guilty is a mitigating factor but for that he receives a discrete discount, as I have earlier identified.
With regard to this aspect of the matter, in the submissions of his counsel, his learned counsel said that I should find that he has good prospects of rehabilitation and that he was unlikely to reoffend and that he was previously of good character. I certainly cannot conclude, on the basis of the prior convictions, that he was previously of good character.
I am required to have regard to s 3A of the Act. In that respect, of course, in the context of this type of offending, the issues of general deterrence and personal deterrence loom largely and there is nothing that appears on the evidence or has been put to me to warrant some diminution of the weight to be given to general deterrence or the related issue, I suppose, of the moral culpability of the prisoner.
The accused is to be made accountable for his actions and is to be adequately punished but I am also required to promote his rehabilitation. I proposed to do that by making a finding of special circumstances pursuant to s 44 of the Act. It might be thought, in the circumstances of the matter, there is not much that can be identified in the evidence warranting such a finding. However, there are some favourable indications of the Community Corrections Service officers as to his amenability to supervision. He will need some adjustment to community living to occur and will need professional assistance in relation to that. I note although he served periodic detention before, he has never served a sentence of fulltime custody.
I bear in mind in that regard that he may need professional assistance in relation to employment, training and the like. Thus, in the circumstances of the matter, I am prepared to make that finding pursuant to s 44 that the special circumstances are such that they warrant an adjustment of the relationship of the non‑parole period to the balance of sentence.
I have taken into account the matter on the Form 1. It is, of itself, a potentially significant offending. It shows, in the context of the planning, consistent with what had gone before, firstly, the taking of a modest sum, if that be the correct expression, in the context of the wider pool of money that was available or pool of funds that were available, and then subsequently an attempt to relieve the account of a more substantial sum but not so great a sum as to completely denude the account of all the money that was involved. The uncomfortable thing about this case is, of course, we have really no explanation from the prisoner about what was to happen to the funds and who, if there was someone pulling the strings, was that person. But it is clearly not Mr Maxwell.
The offending in its terms was quite sophisticated. It must be said this is not your everyday bank fraud or fraud upon accounts. A considerable amount of work had to be done to give effect ultimately to the prisoner getting access to the account and thus being able to remove funds in the ways which were negotiated. Firstly, the issue of a bank cheque and then the proposal, not completed of course, of transferring monies to a Chinese Account. Then there is the use of fraudulent identification produced to Ms. Daher by the prisoner.
The early part of my judgment referred to the fact that I have taken into account the penalties imposed upon Maxwell and Ms Daher. But it is quite clear, putting aside the issue that they were charged with less serious offences and dealt with in the Local Court where there was a lesser maximum penalty available albeit it jurisdictional, they played lesser roles than this prisoner. The prisoner was directing Daher. That is obvious from the agreed facts. Giving her instructions, providing her with a false identity and the like. Thus, her role compared to the prisoner was minor.
Likewise, on my finding of the facts, Mr Maxwell's role was that of a cipher. He was used, firstly, for his identity, to enable a cheque to be negotiated, perhaps to distance the prisoner from the transaction. I do not know precisely why that particular mechanism was required. He was capable of being used by the prisoner in the circumstances identified by Mr Maxwell to try and negotiate the cheque and thus his role. I bear in mind he did not receive the money. That role was considerably less serious than the role of the prisoner.
Bringing me back then to the role of the prisoner, in assessing the objective seriousness of the offending relevant factors are: the role of the prisoner; the amount of the money involved in the principle offence, and potentially in relation to the matter on the Form 1; the directing role that the prisoner played is a significant matter; the potential for the prisoner himself to entirely profit from the transactions. Although I cannot find as a fact that he, in fact, did, notwithstanding the absence of any evidence from the prisoner.
The offence itself is a serious offence. It has a maximum penalty of 15 years. The Crown properly points out that offences involving "money laundering" are serious offences to be dealt with severely but these are all matters of degree and I can see under this particular legislation, far greater sums of money and offences involving considerably more sophistication being committed. The prisoner's criminal history, whilst involving some matters of dishonesty, do not show him to be, if I can use the expression, the worst offender committing the worst offence. The offence itself is a serious, well‑planned example of the type but, as I said, in the context of the sums of money involved, it could be an offence of greater seriousness potentially had greater sums of money been involved, or had the prisoner been able to obtain greater sums of money than those or that identified in the agreed facts.
I believe I have taken into account all the relevant matters that were raised by the parties.
Can you stand up, please, Mr Hagali?
In relation to the offence to which you have pleaded guilty, you are convicted.
I sentence you in that matter, taking into account the matter on the Form 1, to a term of imprisonment of two years, four months by way of non‑parole period. That is to commence on 26 October 2017 and to expire on 25 February 2020. That is the date you will be eligible for parole.
I fix a balance of sentence of one year, six months imprisonment to expire on 25 August 2021.
The total sentence on my calculation is a period of three years, ten months with a non‑parole period of two years, four months.
I must say whilst I have given you a discount of 22.5% it is slightly higher in percentage terms because I have rounded down the appropriate sentence to 3 years ten months imprisonment, rather than imposing a sentence of weeks and days.
Thank you. You can take a seat, thanks very much. Yes, Mr Crown, are there any matters from you?
POULOS: Yes, your Honour. The Crown seeks to file in court a notice of motion seeking an order under the Victims Rights and Support Act for in a sum equal to the amount that has yet to be recovered.
HIS HONOUR: You told me something about that. I made a handwritten note on the statement of facts. Just tell me again what that sum is?
POULOS: Yes, your Honour. $198,000 remains unrecovered by the victim, who is the Western Australian Government Treasury Corporation.
HIS HONOUR: Right. Yes, Mr Brezniak?
BREZNIAK: I've got no submissions, your Honour, in relation to that. I haven't seen it and I can't contribute any argument.
HIS HONOUR: In the context of the facts it is unanswerable, isn't it?
BREZNIAK: Yes, your Honour.
HIS HONOUR: What this will mean, of course, this Treasury Corporation will have civil rights against your client?
BREZNIAK: Yes, your Honour. I comprehend that.
HIS HONOUR: Have you got the orders there, Mr Crown?
POULOS: Yes, your Honour. I'll hand up the notice of motion.
BREZNIAK: May I have a copy?
POULOS: Yes, I'll give a copy to my friend. A copy of short minutes of order and a copy of an order of the Court. I've hand amended, your Honour, the date for the notice of motion to today's date, your Honour.
HIS HONOUR: Pursuant to the short minute of order I order pursuant to s 97(1) Victims Rights and Support Act 2013, that the sum of $198,000 be paid out of the property of the prisoner to the West Australian Government Treasury Corporation by way of compensation for loss sustained through the offence for which the prisoner has been convicted.
I take it they have reimbursed Mr Jones for the money that he lost? I take it that's the basis they've‑‑
Yes. They indemnified him for that loss.
HIS HONOUR: Yes, they've indemnified him, right. There's the order, right.
I'll give everybody a copy of the short minute of order and the order and I will ask my associate to do copies. We'll put the originals on the file and the motion on the file.
I just want to make sure you understand the order I've imposed. I fixed a sentence of three years, ten months imprisonment. I fixed a non‑parole period of two years, six months. You'll be eligible for release to parole on 25 February 2020. It will seem like a long way away, I realise that.
It will be a matter for the parole authority whether you're granted parole. I don't have control over the police people and parole, which is a good thing. Not that I'm saying I wouldn't release people on parole. It's just that it's proper that it be left to the Parole Authority. So your case will be considered by the parole authority.
Of course you have your rights of appeal. The Crown has its rights of appeal. That's properly so. All decisions of Courts should be amenable to review, so that any error made can be reviewed. Understand that?
POULOS: Your Honour‑‑
BREZNIAK: Just before your Honour adjourns, I just raise the question of whether 97 is the correct provision in the Act. Can I just have a moment to check that, your Honour? I think that ‑ well, it may be. I just needed to check that.
HIS HONOUR: Normally on these matters we rely upon the expertise of the Crown to identify the right section. I don't have the relevant practice in front of me at the moment.
BREZNIAK: No, I've just, your Honour, just‑‑
HIS HONOUR: It does ring a bell. I mean, I've made orders before when requested.
BREZNIAK: Yes, your Honour, the section appears to be the applicable provision.
HIS HONOUR: It's the right section. Right. Thanks very much. Thank you, sir. You'll need to go with the officers that are waiting in the back of the Court. Thank you, gentlemen, very much.
POULOS: Thank you, your Honour. Your Honour, just one matter just to confirm. Your Honour ordered a non‑parole period of two years and four months.
HIS HONOUR: Four months.
POULOS: I think you explained to the offender that it was two years and six months, just so‑‑
HIS HONOUR: Four months. No, I said one year and six months was the balance of sentence. That's what I should have said.
POULOS: That's so. Yes, thank you, your Honour.
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Decision last updated: 25 January 2018