Sean Mercer appears for sentence following his entering of a plea of guilty to one charge of knowingly facilitating organised car rebirthing activity. Such an offence is constituted pursuant to s 154G of the Crimes Act 1900 (NSW) and carries a maximum penalty of 14 years imprisonment. There is a standard non-parole period specified by Parliament of 4 years.
The circumstances giving rise to Mr Mercer's plea of guilty are set out in an Agreed Statement of Facts which has been tendered before the Court. It suffices to observe that there was a group of predominantly young men who were involved in activities relating to car rebirthing. Some of those individuals have not yet come before the Court. In relation to the people, as it would seem to me, at the heart of the arrangement were two brothers, Omar and Habib Alameddine. A further brother Hamza Alameddine was not charged with any offences.
In April 2020, there were a number of vehicles which were intended to be completed and converted for use by the Rural Fire Service. They were, in each instance, a Toyota Landcruiser, the cabin of which of course was part and parcel of the way in which the vehicles had come from the manufacturer and the back half, in effect, on top of the chassis undoubtedly would require subsequent modification for the use which was intended of them. They were in premises of a company known as the Varley Group which manufactures specialised vehicles including vehicles for use by emergency services and by extension obviously the Rural Fire Service. Their premises were at Yennora. Each vehicle was kept, not perhaps surprisingly, for convenience in moving around that manufacturing premises with a spare key in each vehicle together with their logbook.
On the night of the 9th and into the early morning of 10 April 2020 during the course of the early hours of 10 April, four of such landcruisers were stolen, in effect two by two. Two of them were taken by unknown males, I presume captured on CCTV footage at about 1.30 and driven away from the premises and the second pair of vehicles were taken by again two unknown males who may or may not have been the same two males who went into the premises and drove out the other two vehicles.
R v Mercer [2021] NSWDC 784 | Case summary | Zoe
Each of the Toyotas were identical 2020 models which, as I indicate, were to be fitted out and equipped for use by the Rural Fire Services. The bottom half of each of the cabs or cabins on each of the vehicles had been painted in bright orange, no doubt in preparation for their ultimate use. The theft of the vehicles constituted a loss of a little under $300,000. The vehicles were insured. I should note in passing that some of them were in due course recovered.
At all events at about ten past 3 on the night that the thefts took place Omar Alameddine sent a text message to a man called Aladdine Ajouz who was his brother in-law asking him to buy a cover and go to his father's place as soon as he saw the message. In due course one of the landcruisers was located at Ajouz's premises under a grey car cover. Over the following days the various landcruisers were taken to premises at Seven Hills which were a legitimate car repair business.
Those particular premises were also utilised by the present offender, Sean Mercer. He had qualified and done his apprenticeship as a spray painter and had for some time been conducting his own business. It would appear that it was predominantly by word of mouth and the arrangement that he had was that although he did not have his own premises to operate the business he was permitted by the owner of the business in Seven Hills to utilise part of the premises for, in effect, his own private smaller business in return for not paying rent but for assisting the proprietor of the main registered business in carrying out repairs in the course of that business.
At all events that arrangement meant that Mr Mercer had keys to the premises and could access them and come and go as he pleased in relation to conducting his own, as I say, predominantly word of mouth business. He operated as a licensed spray painter and restored and repaired cars as well as assisting the proprietor of the main business to carry out projects that he was undertaking.
On the afternoon of the very day on which the vehicles had been stolen from the Varley Group premises at Yennora, Omar Alameddine made contact with the offender and asked him to go to his shop and said he would be there in about 15 minutes. He indicated that he was going to bring a car and the offender said "Come tomorrow" and Omar Alameddine said "It has to be now". He was asked "What do you want me to do with it" by the offender and Omar Alameddine said he wanted to paint it, he said it was very easy.
I should make it clear that some of the conversation might give rise to a connotation that this was not the first occasion that such a task might have been undertaken. It is, however, very important to understand that there are no charges before me, whatever suspicions the police may have held, and the circumstances before this Court relate only to the four vehicles that I will detail in due course and to which I have already made reference.
Over the course of the following days, in short, the present offender spray painted the cabins so that the vehicles were completely white. In due course the investigators who were examining the activities of this apparent group had been monitoring their activities by virtue of lawfully intercepted telephone calls and perchance by other means. In due course they obtained CCTV footage from the commercial premises at which the spray painting took place. The following day, that is 11 April, early in the morning or comparatively early in the morning the offender phoned Omar Alameddine who asked him "how did it turn out" and "how is it looking" and the offender told him that it was good. He obviously had worked either in the course of the afternoon previously or that evening in order to complete the job or perchance very early that morning.
At about 10.51am that morning Omar Alameddine called his brother Habib regarding picking up paint from premises at Greenacre and the first of the utilities, that is the landcruisers with the doors removed was observed parked in the rear yard of the premises. The CCTV footage revealed the offender in due course unlocking the gate to allow Omar Alameddine and that man's father in-law, Mark Jasper, to come into the yard. Then after coming in it would seem that Omar Alameddine examined the paintwork on the bonnet of the Toyota Landcruiser and in due course began to do some work on the driver's side of the vehicle. He was holding a small container and a brush.
The offender came out and spoke with Omar Alameddine and the men appeared to be inspecting the vehicle. In due course, the doors which had been removed for the purpose of the spray job were reattached, having been separately painted and the offender was clearly visible on the CCTV footage. The circumstances of what was subsequently observed would indicate that when the others, that is either Omar Alameddine or in due course his brother who arrived at the premises, were interfering with the vehicle identification number which is the small plate unique to the vehicle stamped either into the chassis or attached to the vehicle otherwise, was being interfered with at a time when Mr Mercer was nearby and in a position to observe what was going on. In due course that vehicle was removed from the rear yard to another part of the premises later that afternoon.
About two days later Omar Alameddine moved one of the additional landcruisers into the premises where it was cleaned and in due course ramps were fitted to a truck being utilised by Habib Alameddine, which I understand was a pantechnicon, and one of the then still unpainted stolen landcruisers was driven off the truck and into the rear yard. That vehicle at that stage had not been repainted and still had the distinctive orange band on the bottom half of it.
Various activities were then observed including the offender passing a, what is described as a die grinder to Mr Ajouz who had come to the premises which would appear to have been for the purpose of grinding the Vehicle Identification Number location. Such detailed observations were relevant and are included in the Agreed Facts as indicative of the knowledge that Mr Mercer must have had as to the illegal nature of the activities which were being carried out and the unlawful state of the vehicles which had been stolen, notwithstanding that he himself played no part in their actual theft.
There were descriptions recorded on telephone regarding the sequence of painting and the following day a further landcruiser which had been stolen was seen to be moved in the yard and to be variously cleaned. In a telephone call recorded later that afternoon Omar Alameddine asked whether the painting had been done and whether a photo had been taken of it and the offender indicated that he had not taken a photo but at all event the painting had in fact been done.
Police had also inserted, pursuant to warrant, a vehicle tracking device on a vehicle driven by another offender and it would appear that that particular offender had been involved in assisting moving one of the stolen landcruisers. I do not see it necessary to go into the detail involving that additional offender at this stage.
On 18 April there was a telephone call recorded between Omar Alameddine and his father in-law in which he said, that is Omar Alameddine said "I gotta go do that car with Sean" that being a reference clearly to the offender. In the early afternoon of 18 April the Alameddine brothers drove to the premises being utilised by Mr Mercer in a pantechnicon inside which they were carrying yet another one of the landcruisers. This, of course, had not been painted at that stage and was clearly being taken to the premises of Mr Mercer for that purpose, that is of respraying.
Later in that afternoon Omar Alameddine spoke by telephone to his brother and asked where the paint is and he was advised that "Ryan was bringing it", that being a reference to another man who subsequently changed his name to Moustafa. I recently sentenced Mr Moustafa although I should observe at this particular point in time that his involvement was so comparatively limited and restricted that no real question of any form of parity arises in relation to the present proceedings nor do I anticipate it is likely to be relevant on that basis with respect to any of the other prospective offenders coming to be sentenced.
On 19 April the fourth landcruiser which by this stage had been resprayed was moved into the rear yard, it having been painted it would seem in the late afternoon or evening or perchance early hours of the morning, overnight, between 18 and 19 April. The blue pantechnicon came back with Omar Alameddine and his father in-law and in due course the white resprayed landcruiser was loaded into the truck with the assistance of Mr Mercer and Mr Omar Alameddine's father in-law.
In due course police did retrieve a photograph of one of the repainted or resprayed landcruisers from the offender's mobile phone. Three of the landcruisers that had been resprayed and were in the process of what is described as the car rebirthing activities, were in due course recovered. The reference of course to rebirthing, to the extent that one needs to elaborate on the process which can take place in a number of different ways, is where a legitimate Vehicle Identification Number acquired from what might be described as a "donor vehicle" is grafted on to a stolen vehicle. Rebirthing takes place in other ways, sometimes involving the acquisition of vehicles written off and then re-registered and upgraded as has occurred in other cases with which the Court is familiar. At all events a vehicle such as the landcruisers in this particular instance, having been stolen, are then reborn as it were with a different Vehicle Identification Number than that which was originally affixed to them.
Mr Mercer was arrested and spoken to by investigators in June 2020. On 2 June 2020 the investigator spoke with the offender who indicated that his knowledge regarding the landcruisers as set out in the Agreed Facts is as follows: "All I know is that they were brought here. As far as I was aware they were second cards (is what's typed) that they had brought here that needed to be changed". I am not sure whether that is meant to be "second cars" or "second hand cars" but at all events that is how it reads. Mr Mercer acknowledged that when the landcruisers were brought to him they were two toned in, as he described it, red and white but there were not trays attached to the back of them and that the work he did was to simply, as he termed it, took them back to white. He was asked how many were brought in over that Easter weekend. He said it was three or four. He started to say four then thought it was three. He said he was paid $400 per car.
He denied that Omar Alameddine had asked him to paint the landcruisers which of course was, it would seem on the material before me, not true. At all events he was arrested on 12 August 2020 and he participated in a recorded interview in which, it would appear to me in the very short summary in dot point form, he did not reveal all and certainly did not reveal who it was that had attended and brought the vehicles to him. Whilst that may be understandable, the simple fact is that he was not fully open and cooperative with the authorities at that time. He was subsequently charged as I have indicated with the offence under 154G and he has entered a plea of guilty to that offence.
In circumstances where the act itself and nature of the offence requires for it to be organised criminal activity, the involvement of more than one vehicle and more than one person, there is a degree of overlap between the elements of the offence and the actual iteration of the number of participants and the number of vehicles. That having been said, clearly the objective seriousness of the offence is tempered one way or the other by reference to the number of people involved, by the length of involvement of a particular contributor to the ongoing rebirthing activity and indeed by reference to the number of vehicles.
Whilst not falling to the lowest end of involvement in such matters, it is obvious to observe that this involved relevantly and for present purposes the respraying of four cabins attached to chassis of vehicles on each occasion involving a contribution of some number of hours labour by Mr Mercer and his involvement that extended over a period of a little more than a week. It may well be properly categorised as falling somewhat below the mid-range of activities of this kind but certainly not towards the lowest end. I will make some further reference to that in light of the analysis that his Honour Justice Basten made in regards to the categorisation of the objective seriousness in the matters of R v Tannous, Fahda and Dib [2012] NSWCCA 243 and on my assessment which of course involves to some considerable degree a subjective discretionary assessment, I am of the view that the offending in this instance objectively falls somewhat below the mid-range but as I say not towards the bottom of the range underneath that.
I turn to some of the subjective factors in relation to Mr Mercer. Material touching upon his subjective background has been provided to the Court in a number of ways. Significantly, Mr Mercer himself gave extensive oral evidence before me yesterday. It is appropriate to observe that he gives the impression, which I accept, of being genuinely remorseful. He is, of course, sorry for the situation that he finds himself in but he expresses appropriately a level of remorse and contrition in relation to his involvement in the activities and the effect that it can have on others in the community. His oral testimony was supplemented by a number of documents and by oral testimony called from two people who have known him for a long period of time.
A medical practitioner, Dr Roberta Leary, provided a medical report setting out for relevant purposes her understanding of his family background and circumstances. I do not propose to articulate the detail of that other than to note that the general practitioner confirms the difficult physical and psychological illnesses suffered by his mother and problems with depression and anxiety described as chronic and debilitating of Mr Mercer's older brother and also difficulties suffered by his younger sister who he has described as having had a mentoring attitude towards. I will make more reference to that shortly. In addition to that material there are a number of other references to which I will refer in brief outline in due course.
Mr Mercer was born in November 1992 and is now 28 years of age. He has lived with his mother and siblings effectively all his life. He has an older brother who is some three years older than him and a younger sister who is ten years younger than him. His sister is a half-sister having had a different father to Mr Mercer's own natural father. His mother was, in effect, deserted as it was put to me or at least left the marriage when he was about three and his older brother was about six. He was brought up by his mother, in effect, she being a single mother throughout all of his life. They have lived in the Housing Commission house that they currently reside in for the past 20 years. His sister was born, as I say, to a different father about seven years after his father left when he was around about the age of ten. He described in somewhat banal terms that things were pretty tough growing up. I do not mean to imply anything by that description other than I recognise the import, as I am sure was intentionally led in that fashion by his experienced counsel, Mr Naughtin.
He went to Dundas Public School for primary school and ultimately to Cumberland High School. In again broad and somewhat generalised terms it was described that he misbehaved and as a consequence he was transferred to the Waratah Centre which was an educational facility for children and young teenagers in particular with behavioural issues. In due course he finished Year 9 but did not stay at school to achieve the School Certificate.
He attended Granville TAFE and continued to do so doing his trade course for about three years. He undertook an apprenticeship and was working whilst he was doing that. I think it is a reasonable observation that his past history demonstrates what might be described as dabbling with drugs and alcohol and ongoing driving offences which regrettably is hardly unusual in light of his background. That having been said he had another aspect to his character which one does not always see with young people with continual driving offences and so on, that is that he pursued a trade, he completed it, obtained his trade qualifications and would appear to have been a hard worker at all relevant times.
He completed his trade at Carlingford Smash Repairs and was there for about four years. He then had employment elsewhere and then returned to Carlingford after about a year or so. In due course, about three or four years ago, he determined to set up his own business. He did so and while the details of just how structured that was and whether he had a registered business name, whether he advertised or simply relied upon word of mouth, as I have indicated earlier in these remarks, is not completely clear, however he did enter into an arrangement with the premises where in due course his criminal conduct took place where he was able to operate his business in conjunction with assisting in the, what appears to me to have been the more major repair business, operating apparently legitimately from the same premises.
He described the medical problems of his mother to which I have already made reference and confirmed the details set out in the general practitioner's report regarding each of his siblings. His sister in fact has obtained employment in childcare, she now being about 18 years of age, although I got the impression unless I did not hear something properly, that his brother may not necessarily be employed. Be that as it may, he has in his personal life had a friendship which would appear to have developed more substantially in recent years with a young lady who resides in Nowra. Just how they first met each other has not been revealed to me but be that as it may, he has operated on a weekly basis going from his current employment in Sydney, I anticipate pursuant to public health order exemptions, down to the residence at Nowra where he lives on the weekends with his partner. She has a nine year old daughter from a former relationship and describes him as being, in effect, an excellent father towards her. She is, in more recent times, pregnant and is expecting to give birth to their child in March. He describes her as his fiancé and the relationship, reading her reference to the Court, would appear to be pretty solid.
He has assisted her in the administration and running of her not insubstantial dance and cheerleading business which has I think they described it has 200 students which no doubt would require some reasonable level of administrative skills to look after the bookwork.
At all events he articulated in the course of his testimony before me his feelings of remorse. He described feeling sick as to what had happened and what he has done and the effect he has had on his own family and, as he described it, the community in general. He explained that while his experienced counsel had asked him to write a letter of apology to the Court in addition to giving oral testimony, he simply could not do it. He said he had difficulty in writing. He appeared somewhat emotional in describing his inability to effectively write a letter of apology and whilst he made reference to his level of education his articulate skills would seem to me to be such that if he could be sat in the one place with a pen for long enough perhaps he might be able to have written an appropriate expression of his feelings. That having been said, he articulated them before me and I accept them as genuine.
He described the obtaining of references for the purpose of provision to the Court as being a source of embarrassment. He explained that his offending was a matter of, in effect, common knowledge in the community in which he has grown up and the necessity to disclose the full nature of his offending to those who he asked to write character references was a cause of not inconsiderable embarrassment.
Mr Richard Lawrence, who has known Mr Mercer since he was at primary school in circumstances where Mr Mercer and Mr Lawrence's son and Mr Lawrence's daughter were at the same primary school, was called to give evidence. He, together with his son, runs a plumbing business and he described his views of Mr Mercer in terms which included descriptions of being a diligent worker. He said he is a person who always wants to please people. He would help and agree to help out anybody on request and indicated that whilst Mr Mercer was a year younger than his own son, James, he had been in a position to observe the work ethic of Mr Mercer over many, many years.
In addition to his personal views formed by virtue of the friendship between the families and their geographical closeness he described a business-type relationship where he had given work in relation to the plumbing business vehicles to Mr Mercer and he describes him as being a person who would go the extra mile. He indicated that he had been told the detail of the current offending and he described the difficulties that he observed with Mrs Mercer raising three children on her own.
His son James was also called, he being, as I perceived it, in a managerial role in a number of family businesses and he described his friend, Mr Mercer, who he has known since they were at primary school together, as in effect being somebody who committed this offending because he was in too far to turn back. He was cross-examined to some degree about that description on behalf of the Crown and the clear inference that I draw from both that description and from some questions which I asked of Mr Mercer, remain a little opaque and it was not pursued with any vigour either by me or by the Crown but there was clearly a suggestion that having been asked whether out of loyalty or whatever connection it actually was, to carry out this task, he was not really, it would seem, in a position after doing one vehicle or even two vehicles to say "I'm not doing anymore".
The simple fact is that he complied on request with undertaking the task at hand and on the evidence and the only evidence before me, nor was not the subject of cross-examination nor is it the subject of any financial investigation into accounts or the like, but the only evidence is that Mr Mercer was paid $400 per vehicle. That might seem like a small return for a full respray even though it is not a full vehicle, but be that as it may that is the only evidence before me as to his actual benefit in relation to this criminal conduct.
The letters of reference are in broad terms to very similar effect. Dr Avakian indicates that he has known the offender for some 11 years and he had first come into contact with him while his vehicle, that is Dr Avakian's vehicle, was undergoing repairs where Mr Mercer worked. He must have either still been in his apprenticeship, it would seem to me, at that time. He described having become friends soon after and having remained friends since that time. He described him as being diligent and a determined young man with a good work ethic and an empathy that defines him. He said he is the first to help when needed and strives to please all that is asked of him. I interpolate that that is a theme that has been consistent throughout the evidence about this man's character. He is described as a polite, conscientious young man who is excellent around the doctor's family and his young children who often ask for him to come and visit.
He is described as hard working with a strong focus on satisfying people, sometimes to his detriment. Dr Avakian described him as tenacious once set a task with a strong desire to do his best. He had no hesitation in recommending him highly as a good tradesman and as a friend. He described himself in an expanded aspect of that reference to indicate that he was shocked and disappointed to learn about the charges and that he wrote to some degree in disbelief where he needed to ask for such a reference. Dr Avakian described himself as feeling in an oxymoronic situation in writing the character reference but felt compelled to still recommend him as a person of good character given his past experience with him notwithstanding the seriousness of the charges.
A further reference under the hand of Jeanette Hernandez indicates that she had known him for some 12 years and was first introduced as the girlfriend of a friend of Mr Mercer's. Over time she said she had developed a genuine friendship and she herself had grown from a teenager to now being a mother. She describes seeing him grow and looking forward to seeing him growing into being a father to his own children. She said that to her observation it was always undoubtedly clear that he was hardworking and that he took pride in his accomplishment. She described him as having spent the earlier parts of his young life effectively being the man of the household assisting his mother in relation to the raising of the three children. She described him, as to some degree did the general practitioner, as having been seen to be the mentor to his younger sister and to have lovingly cared for and provided for his mother during times of difficulty. She described his role as the caregiver now appearing to extend to his stepdaughter with whom he has a close and loving relationship.
She described in some considerable detail the examples of his, as she described it, being the most genuine person she has met. I do not see the necessity to go into the examples that she gives but she describes in terms of some compelling persuasion his contributing to assisting for things that needed to be done for her. She described him as being the type of person that he would never turn anyone away regardless of what it may take from him. She first found out about his charges as a consequence of an article posted in the local media and described being in absolute disbelief. When she spoke to the offender about it she described the indignity becoming very clear, he at that stage not wanting to discuss the matter and rather perceived by her to be reflecting more on feelings of remorse and regret. Notwithstanding her knowledge of the circumstances she describes him as selfless and compassionate and indicates her preparedness to stand by him.
Dominico Squillaciotti, a friend of his from school who is now 30 years old but has known him since primary school and indicates that he has no criminal record himself and has his own business, described the offender as being very reliable and helpful, honest and kind. He describes his perception of the offender being truly sorry for what he has done and having made tremendous changes in his life and describes the plans the offender has which he himself gave in evidence before me of intending to move in with his partner down in Nowra before the birth of the anticipated child.
A similar glowing reference from Daniel Smith has also been provided including the shock that Mr Smith felt when he found out about the offending. He too has known the offender since their early teens and he described school not having been Mr Mercer's fit, to use his terminology, but described him having come to work with his business at Carlingford Prestige Smash Repairs and described how in his apprenticeship he fitted in quickly and adapted to the team and work environment and picked up considerable skills within the first six months. He describes him as having rarely had a day off and being punctual and polite.
He described him having finished his apprenticeship with Carlingford Prestige Smash Repairs but then deciding to pursue a role with a different company and learn a new skillset in relation to boiler making. Some years later he reached out to Mr Mercer to ask him to fill a position and it was in those circumstances that Mr Mercer went back and worked at Carlingford Prestige Smash Repairs. He indicates that he continued to work for them until he left in order to start his own business. He described them as having kept in contact ever since and said that he has a lot of respect in what he had observed to be the transition in Mr Mercer's life from a young 14 year old boy through his apprenticeship and now to being a father to be.
A further letter from a Mr Robert Smith who is the stepfather, it would appear, of Eliza Bartlett who is the fiancé of the offender has also been provided to the Court. His prospective father in-law or stepfather in-law describes him as having had a positive effect on his stepdaughter and having shown affection, respect and love for both Eliza and for her nine year old daughter. He describes them looking forward to the birth of their first child. He is described as having been seen by Mr Robert Smith as extremely honest, helpful and respectful both to his wife and to himself. He described the enthusiasm and pride in completing tasks and jobs in which they had been associated and describes the ongoing success of the valuable community activity that Mr Mercer has contributed to in relation to Eliza having established a cheer academy in Nowra.
His partner also has written and confirms all of those positive attributes and described in terms that her future husband has shown on many occasions to her his remorse for his actions in regards to the charges and the level of shame that he feels in relation to the role that he played. She expressed the view that he is excited to begin his journey of fulltime family life as well as continuing to assist in growing the business once he makes, what has been described, as a long awaited move to Nowra.
A further reference from a Mr Johnny Coutsakis indicates that he had been known and part of Mr Coutsakis' family for about 15 years. He described him as a person that you could rely upon regardless of circumstances as he would always put everyone's needs before his own. He described particular examples of him having assisted Mr Coutsakis' family or members of it. He similarly describes the expressions of regret and shame expressed by Mr Mercer and indicates that notwithstanding his conduct in the criminal sphere he still holds him in the highest regards.
Mr James Lawrence, as I indicated earlier, gave oral testimony but also provided a written document.
In the course of his own oral testimony Mr Mercer indicated that it was his intention, he having been on bail now for some 14 months, to have moved to Nowra before this time although the uncertainty surrounding the outcome of these proceedings has kept him in Sydney.
Offences of this kind, it is clear, are of considerable cost to the community. When the provisions are dealing with activities of this kind had the maximum penalty increased by parliament from ten years to 14 years, the Second Reading Speech highlighted aspects of the evil regarding rebirthing activities and the cost to the community. The background to that increase derived from the report of Assistant Commissioner Gerard Cripps who presided over the Independent Commission Against Corruption report entitled "Rebirthing motor vehicles: investigating into the conduct of staff of the Roads and Traffic Authority and others" which was published in November 2000. In that report Assistant Commissioner Cripps QC considered the vice of car rebirthing including the theft of cars for that purpose and the production of valuable items for criminals to resell to unsuspecting buyers. In that particular inquiry, the scope for the corruption of public officials in both vehicle inspection and subsequent registration was also emphasised and the subject was of considerable publicity at the time.
In due course the amendments were made in 2006. That reflected a specific legislative response to the problem which had been identified in the report from the ICAC with particular emphasis upon the need for deterrence and the imposition of appropriately severe penalties. In introducing those amendments, the minister noted that car and also boat rebirthing activities was costing the New South Wales community some $100 million annually. The minister identified some of the social costs of rebirthing and he said:
"Firstly rebirthing means that the stolen vehicle will not be recovered in contrast to joyriding style car theft where the vehicle is usually recovered. This results in true owners being deprived of their cars permanently and higher insurance premiums for us all. In addition if a rebirthed car that has been on sold is subsequently identified, seized and taken back to its true owner, the honest buyer who paid market price for the car may be left with nothing. Secondly rebirthing is dangerous, it may involve serious physical alterations to the car such as grafting the front end of one car to the backend of another. This creates a structural flaw which in an accident could mean that the car disintegrates with its innocent new owners inside. Thirdly, because rebirthing is potentially lucrative it entices young people into becoming involved with organised criminal gangs. It can corrupt legitimate tradespeople who work with vehicles because rebirthing gangs actively seek to recruit professionals working in the industries of motor vehicle repair, wrecking, sale and registration. These people can provide the paperwork to give the birther's illegal activities the veneer of legitimacy."
I should interpolate that the recruitment of people to facilitate activities of camouflage such as respraying a vehicle, could also legitimately be included in that description.
The minister, in terms of the intended deterrent effect of the legislation, also said this:
"These new offences provide deterrence against being involved in rebirthing and send a clear message to those thinking of being involved in rebirthing activity that the punishment will far outweigh any illegal benefits."
The Court of Criminal Appeal looked at questions of the rebirthing of vehicles in a number of cases that went to it now some considerable number of years ago. The Crown in the present proceedings has brought the Court's attention specifically to the decision of the New South Wales Court of Criminal Appeal in the R v Tannous, R v Fahda and R v Dib [2012] NSWCCA 243 which were heard together in August 2012. The Court reserved for some considerable time before delivering judgment in November 2012. The leading judgment was given by his Honour Justice Basten with whom his Honour Justice Hall, now ironically at the ICAC, and Justice Beech‑Jones agreed. That was an appeal against a decision of Judge Syme of the District Court in January 2012 where her Honour had imposed sentences in each case of less than an aggregate of three years and had directed that the sentences should be served by way of an Intensive Correction Order.
The application of Intensive Correction Orders back in 2012 was the subject of considerable examination by the Supreme Court and in particular by the Court of Criminal Appeal. Opinions originally expressed by her Honour Justice Simpson regarding limitations on the use of ICOs were ultimately overturned in the five bench decision of R v Pogson and Lapham [2012] NSWCCA 225 and that judgment had in fact been passed by the time the Court of Criminal Appeal came to deal with Tannous & Ors in the latter part of 2012. It had not of course been passed at the time of the matters being dealt with at first instance.
I have carefully perused the observations in Tannous & Ors and have taken considerable care in understanding the matter in which the expressions of the desirability of fulltime custody for such offending should be construed. In dealing with the objective circumstances in that particular case it suffices to observe that two of the offenders had been going to go to trial, pleaded guilty at the first day of the trial and accordingly got 10% discounts from otherwise appropriate sentences. Mr Tannous on the other hand had indicated an earlier plea of guilty and was entitled to a 25% discount. The subjective features of each of them differed quite substantially from the case before me today and it would seem to me that the objective circumstances of the particular crimes with which they were involved, which include one of them paying a compensation of some $150,000, no doubt in relation to profits derived, were all taken into account. Ultimately the Court of Criminal Appeal determined that an appropriate starting point in respect of each of those three offenders was a starting point of three years.
In the case of Mr Tannous the 25% discount resulted that being reduced to a period of two years and three months and a non-parole period of 18 months was indicated as being appropriate. The other two offenders each got a 10% discount from a three year term resulting in 32 month terms of imprisonment with 20 month non-parole periods.
Examination of more recent authority from this Court and statistics, and I acknowledge the blunt instrument that the JIRS statistics are frequently described as, reveals that since the reforms in 2018 there have been but six cases reported, two-thirds of which have been dealt with by way of Intensive Corrections Orders. I note by reference to the statistics and indeed to some of the cases that I have taken the time to specifically look at, that prior to the reforms a little over 10% of the cases under 154G resulted in Intensive Correction Orders and the vast majority resulted in custodial terms.
A number of matters immediately before the reforms in 2018 resulted in full-time custodial sentences and I have specifically looked at a number of decisions of his Honour Judge Mahony SC included amongst which are the matter of R v Salome [2017] NSWDC 138, R v Eid similarly a decision of Judge Mahony SC [2017] NSWDC 76 and references in those decisions to related results both before Judge Mahony and before other judges in relation to the imposition of terms of imprisonment.
It is not inappropriate to note that, for example in the matter of Salome the offending extended over a period of some 20 months. There were very substantial profits that were derived and in the case of Mr Salome he was found to be the offender at the highest point in the apex, in the hierarchy of organised activity. Various of the others were described as to where they fell within the hierarchy and the outcome of the results of the different people in that ongoing criminal activity is set out. Some of them resulted in other than full-time custody but Mr Salome, to use as an example, despite sitting at the apex of the hierarchy received a term of imprisonment which was indicative for the 154G offence of four years with two years non-parole for the first offence under 154G and for a subsequent 154G offence also dealt with in the same case, three years imprisonment with a non-parole period of 18 months.
Various of the cases in which the imposition of an Intensive Correction Order has more recently been imposed can be found in the decision of R v El Khoury [2018] NSWDC 455, a decision of his Honour Judge King SC following a trial of Mrs El Khoury in late 2018. She was integral and fundamental to the criminal activities that were being carried out within a business where she had variously held herself out to be the director and manager, the director of the exotic car part centre and manager of one other aspect of the business and she had taken a series of steps to have her brother's involvement in the business recognised by New South Wales Fair Trading. She had, in effect, provided the very cover, for want of a better way of describing it, under which the stolen vehicles and the rebirthing activities were able to be undertaken in premises one of which she owned being her home in Majors Bay Road Concord and another being a dilapidated factory in Alexandria which she leased. Her involvement was to provide the premises with full knowledge of what was going on. She was also charged with proceeds of crime relating to her possession of a red Ferrari F1 and also a Group A Holden Commodore.
Ultimately she was described as being a person who at all material times had an interest, albeit a commercial interest, in the criminal activities of her brother and the jury so found. Notwithstanding that finding she had no previous criminal history. There was some psychological material placed before the Court and also aspects relating to her support of her parents. She had otherwise good character. Ultimately, notwithstanding that his Honour found it was impossible to find that there was any acceptable evidence of remorse or contrition, Judge King in relation to the facilitating of the car rebirthing activities on an organised basis, which was Count 1 in the indictment, proceeded to give an indicative sentence of 18 months. It would appear that his Honour overlooked the necessity to indicate a non-parole period but at all events the ultimate sentence which was aggregated was determined to be a sentence of two years which was directed to be served by way of an Intensive Correction Order.
In R v Obeid [2019] NSWDC 204, his Honour Judge Bennett SC dealt with pleas of guilty which had been entered on the first day of a proposed trial in relation to a number of different counts. The first count in the indictment related to a boat rebirthing activity charged under the same section with which I am dealing namely s 154G of the Crimes Act 1900. The relevant facts before his Honour related to the rebirthing in that instance of jet skis and activities involved in hands on acquisition of spare parts, the hands on involvement in the theft of the vehicles and the hands on involvement in their ultimate re‑registering with RMS by Mr Obeid.
Various other participants in that criminal group had already been sentenced and some of them had been given terms of imprisonment. At the time that those earlier sentences had been passed, Intensive Correction Orders were not available because the sentences were longer than two years. The subsequent extension to three years for aggregate sentences being a later reform by parliament. Ultimately in relation to Mr Obeid the availability of an aggregate sentence meant that his Honour Judge Bennett SC determined that the appropriate sentence, taking into account a 20% discount with respect to one of the counts, 25% discount in relation to two of the other counts, they having been not become available to receive the full discount until they were amended at the beginning of the trial, was ultimately determined to be an aggregate sentence of two years and four months. The indicative sentence for the 154G offence, taking into account a deduction of only 20%, was two years and two months. It is perchance not insignificant that had the full 25% been available to it, that would have reduced the indicative sentence to two years. In the ultimate, the aggregate sentence imposed by his Honour Judge Bennett was directed to be performed by way of an Intensive Correction Order.
The individual discretion which I am called upon to exercise, although assisted by an examination of the outcomes in other cases, requires a clear recognition that other cases turn on their own individual facts and notwithstanding the ability to read those judgments, the detail of the analysis required ultimately leads one to a determination that they of course can do nothing more than provide a general indication of the range available and outcomes in the particular circumstances of those cases.
In the present matter, in addition to the matters to which I have already alluded, the Court has been provided with a Sentencing Assessment Report. That has been provided by an experienced Community Corrections Officer from Parramatta Community Corrections office in recent times. The indications in that particular report are slightly at odds with some of the oral testimony before me. Mr Mercer indicated that he was unaware the vehicles brought to him by the co-accused were illegally obtained, although he has clearly indicated in the course of his evidence here, as in my view he needed to, that whilst he may have had his own suspicions at the very beginning he obviously very well knew extremely early on if not before the matter was approached to him, that the vehicles were indeed illegally obtained. He has acknowledged as such in his evidence before me.
He indicated that despite witnessing illegal activity being performed by the others he failed to intervene or notify authorities and may I descend into the colloquial to say that is hardly surprising. In all of the circumstances he indicated his intention to cease his own business subject to the outcome of today's proceedings and he plans to relocate to the area of Nowra with his partner and her daughter and the growing business and their impending child, at the end of this year. He indicated a willingness and ability to undertake intervention and supervision and also a willingness and ability to undertake Community Service Work.
Pursuant to the Revised Level of Service Inventory he was assessed as a T2 low risk of offending. The consequence of that are set out in customary fashion regarding the level of supervision particularly bearing in mind the current circumstances surrounding the pandemic. He has been assessed as suitable to undertake 21 hours of Community Service Work per month. I am conscious that due to the current pandemic public health restrictions all community service work at Parramatta Community Corrections office is presently suspended, however I am also cognisant of the reality that should he move to Nowra, as intended, the circumstances in the lower south coast region may well be somewhat different than they are in the, as presently described, hotspot of Parramatta.
I am ultimately of the view that the s 5 threshold requiring consideration of whether any alternative to a sentence of imprisonment is available, has indeed been crossed. I am of the view that a starting point before taking into account the 25% discount would be a period of two years and eight months imprisonment. Taking into account the discount of 25% that the Court is required to allow in relation to the early entry of a plea of guilty, that would reduce the appropriate sentence to a period of two years. I am satisfied that it is appropriate that such term be served by way of an Intensive Corrections Order.
The formal orders of the Court are as follows:
Mr Mercer you are convicted. You are sentenced to a term of imprisonment for a period of two years. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentence imposed is to be served by way of an Intensive Correction Order. That sentence will commence today, 8 October 2021. You must report to the Community Corrections office at Parramatta, and I interpolate I presume that is as presently advised by a police telephone, as soon as practicable but no later than seven days from today's date. The standard conditions of the order apply. They are, firstly, that you must not commit any offence and secondly you must submit to supervision by a Community Corrections officer. The following additional condition will apply. You will be required to undertake community service work for a period of 200 hours. A copy of this order will be provided to you and to your legal representatives electronically by the Court registry and will in due course be explained by Community Corrections.
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Decision last updated: 11 April 2022