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[2011] NSWDC 205
District Court of NSW
2010-10-22
Mr P
Original judgment source is linked above.
SENTENCE 1In 2006 and 2007 a joint New South Wales Crime Commission and New South Wales Police task force investigation known as Operation Schoale led to the arrest of a number of men and women associated with various aspects of the importation and later sale of large quantities of cocaine. Two senior figures in that importation and supply business were Alen Moradian and Luke Sparos. Natasha Youkhana, now known as Natasha Moradian, the offender now before the Court, is the wife of Alen Moradian. The offender has pleaded guilty to four counts: (1)Between 1 December 2005 and 31 May 2006 conduct transactions to avoid reporting requirements ($386,172.15): ss 31(1)/31(3) Financial Transaction Reports Act 1988 (Cth), maximum penalty five years and/or 300 penalty unit fine. (2)On 14 May 2007 give false evidence at the Crime Commission: s 21 NSW Crime Commission Act 1995, maximum penalty five years and/or 500 penalty unit fine. (3)On 17 May 2007 do an act with intent to pervert the course of justice: s 319 Crimes Act 1900 (NSW), maximum penalty fourteen years. (4)Between 29 October 2005 and 25 July 2007 knowingly deal with proceeds of crime ($4,642,135): s 193B(2) Crimes Act 1900 (NSW), maximum penalty fifteen years. 2The offender was initially arrested in 2007 for the false evidence and pervert the course of justice matters on 14 June 2007. She received bail. Part of the dealing with the proceeds of crime offence was committed whilst on this bail. She was arrested for this offence on 25 July 2007 and spent seven days in custody before being bailed again on 30 July 2007. The continuation of offending while on bail is an aggravating feature that must be taken into account on sentence. She must also have the benefit of her time in custody.
The guilty pleas 3The guilty pleas were entered in the Local Court towards the end of the committal proceedings. They came after negotiation between the defence and the Office of the Director of Public Prosecutions. Attempts were made to proceed on the basis of Agreed Facts, however, as agreement could not be reached on all matters, factual issues were required to be resolved by me. Evidence was called over a number of days as it was impossible to allocate a fixed block of time to this matter and my spare court time was also taken up by others involved in Operation Schoale . There were further adjournments because of the illness of the offender and after sentencing submissions to allow for urgent and necessary medical treatment. 4Despite the delay in entering the pleas and the hearing of the matter, I was told by the solicitor for the Director of Public Prosecutions and accept, that the guilty pleas had considerable utilitarian value. Such is that value that it was initially accepted by the Director that a reduction in the otherwise appropriate sentence of twenty-five per cent was warranted. This concession has been made in relation to all offenders sentenced following Operation Schoale whose guilty pleas were indicated in the Local Court despite the fact their pleas were not timely. This concession was later qualified because the protracted factual dispute here did reduce the utilitarian value of the pleas entered in the Local Court. As will be clear, many of those disputed matters have been determined against the offender. Given the generous concessions made in other Operation Schoale matters and made initially here, I must consider issues of parity and fairness as a factor in assessing any reduction for the plea. I am conscious of what was said recently by the Court of Criminal Appeal in R v AB [2011] NSWCCA 229 at [2] and [33] about the impact of disputes and by the Chief Justice in Thompson (2000) 49 NSWLR 383 and Howie J in Borkowski (2009) 195 A Crim R 1, about the timeliness of the pleas. Nevertheless, as the High Court has recently made quite plain in Muldrock [2011] HCA 39, no one factor can be determinative when it comes to the exercise of a sentencing discretion. 5I have determined that in all the circumstances a reduction of twenty-five per cent should be extended in this case to reflect the utilitarian value of the plea. Those circumstances include: the pleas were indicated in the Local Court; the initial concessions made by the Director; my allowance of twenty-five per cent reductions for all those involved in Operation Schoale who did plead in the Local Court; and the considerable delay in this matter, not all of which can be blamed on the offender and which, in part, results from the inability to secure court resources to deal with the matter promptly. So far as the Commonwealth matter is concerned, the offender's willingness to facilitate the course of justice must also result in a similar reduction of the otherwise appropriate sentence.
Offender's background 6The offender was born in Kuwait in June 1972. Her parents are Assyrian Iraqis and members of the Assyrian Christian Church. They fled persecution because of their religion and settled eventually in Australia in 1974. The offender's parents worked hard to provide for her and her sister, Tanya. Times were often hard and tough, especially after her father was involved in a serious work accident when she was fifteen years old. All the evidence indicates she was a hard-working and ambitious young girl who did well at school and university. She entered the workforce at fifteen and has been constantly employed in responsible positions since graduation from university. 7The material before me indicates she has a great capacity for hard work and industry and cares greatly for her family. She was, until the commission of these offences, a woman of strong character, respectful and devout in her duties to her church and her local community. She presently assists in the care of her parents who both have serious medical problems, which is set out in exhibits before me. Prior to the commission of these offences she was a woman of good, even exemplary, character. She had never, previous to her first arrest, been in any trouble with the law. 8When the offender was in her early thirties she met Alen Moradian. Although he was also from an Assyrian Iraqi family who worked hard to repay this country for the refuge from persecution it offered, his background was quite different: see Moradian [2011] NSWDC 130. He had rarely had legitimate employment. He had a history of drug and alcohol abuse and had spent periods in gaol, primarily on remand or pending a successful appeal. Despite their different characters they fell in love, lived together, became engaged and eventually married. By all accounts it was, and remains, a loving and supportive relationship. It is clear that, had the offender not fallen in love with Mr Moradian, she would not now find herself before a court. 9The first of these offences occurred in 2005. They continued until her arrest in 2007. The explanation offered by the offender for this change from a highly concerned and decent individual to a serious criminal offender is difficult to understand. In her letters to me, her statements to her psychologist and her evidence on 16 November 2011, she says Mr Moradian was over-bearing and dominant: a person who did not explain, was flamboyant and did not abide by society's rules. She, however, is an intelligent, well educated woman who had, at least initially, a strong social conscience. She herself, from all the material before me, has a strong personality and is, I find, capable of manipulative behaviour. 10Her offending began when she agreed to commit the offences regarding avoiding of reporting requirements. It is clear that she was aware the source of the money was illicit. She did so to launder money which was to be used for the deposit for the home she and Mr Moradian intended to buy. She involved her sister in this offence. She failed to consider the consequences of this behaviour. She told me that she was aware her husband had had a drug problem and had told her that he was in debt as a consequence. Drug debts, however, do not explain the source of the money nor why she chose to involve herself in the laundering of large sums of money which she accepts must have come from illicit sources. She told me that when they were engaged in April 2006 she gave Mr Moradian an ultimatum, "stay away from crime or else risk the relationship", but the transaction matters continued beyond this time. It is clear that if she made the ultimatum it was not kept and she was prepared to accept from the offender the benefits of cash derived from his illicit transactions. By 2007, well after this ultimatum, she had also been engaged for some time in laundering large sums of her husband's cash with the assistance of a former work colleague, Mr Torelli. She was also prepared to spend large sums on her wedding, their home and other luxury items. 11In a letter to me (Exhibit 2) she paints a very different picture of her husband to the man I sentenced earlier this year. In that letter she says she made some extremely poor decisions and these decisions spiralled out of control. She said she is: "...so sorry I allowed myself to benefit from material possessions. I have always worked hard and enjoyed working professionally. All those objects are merely that". 12She spoke of her desire to have children, her desire to be a good person and her fears for her elderly and sick parents. There is evidence in Exhibit 3 that she feared either she or her husband would be kidnapped because of publicity in relation to their wealth. 13Mr Watson-Munro, forensic psychologist, whose report is Exhibit 1, provides some background to the offender's life. This is set out again in the report of Ms Robilliard, psychologist, which is Exhibit 14. The offender is understandably anxious and depressed as a result of her and her husband's present predicament and her fears for the future. The Pre-Sentence Report and an update were also tendered. The update notes she has developed some insight into her offending behaviour but continues to be guarded in discussing it. The reports, however, offer no real insight into her offending behaviour. 14Some understanding of her criminal behaviour can be gleaned from an undated letter to her husband (Exhibit A, Tab 7). In it she criticises her husband for showing off his drug profit derived wealth: "We need to be smart, baby...Why do you sit there and show off...Do you see the Sopranos doing that? Would you see Tony Soprano doing that?...He points it all on the junior for a reason: to take the heat away from him. He doesn't care who people think is boss. Papers" - money, I interpolate - "this is the number one priority". 15As Ms Gray for the Director submitted, this is not a letter of a manipulated woman but someone who, at the time it was written, was not concerned about her husband's criminal behaviour. Rather, she was worried about the risks his showing off created and the fact that he was sharing his wealth with underlings who did not deserve it. 16The offender gave evidence in relation to a number of matters. As with many witnesses, there were some parts of her evidence that I can accept. Other parts are clearly contrary to the bulk of material that was tendered and is available to me in these sentencing proceedings. I cannot accept all of her evidence. As Mr Boulten SC for the offender properly submitted I should, and do, pause before rejecting her testimony. But, that done, much of what she said to me in letters and evidence to those who prepared the various reports to me cannot be accepted. 17I cannot accept her evidence she made very few cash payments in relation to the premises at West Pennant Hills. It flies in the face of earlier cash payments put through the bank account, her dealings with cash in relation to her wedding and her dealings with Mr Torelli. It also appears inconsistent with what was said in evidence and the statement by Mr Atmalian and the conclusions of Ms Requelim that both the offender and her husband made cash payments for jewellery (Exhibit E). When she gave her evidence it was clear to me that, even as late as November 2011, she was, as she did in her letters to me, attempting to minimise her role in spending and benefiting from large amounts of cash which her husband's business had made available to them both. 18Evidence and material such as Exhibit K indicates she was actively involved in spending her husband's cash for his and her own benefit. It is not clear why she attempts to minimise her behaviour in some aspects when, in others, she appeared fairly frank in her recognition of her criminal behaviour. I can only surmise that she, herself, does not recognise the enormity of her criminal behaviour or the results of that behaviour, despite its obvious consequences for herself and her family. 19I can only conclude that the offender was, because of, initially, her relationship with Mr Moradian, seduced by the things and the lifestyle her husband's illicit business could provide her and thus her motivation for offending was simple greed. She shared in her husband's excessive wealth and assisted him in hiding, spending and using it for his benefit, her benefit and the benefit of their marriage partnership. Such was her greed that it overrode her own well-entrenched social conscience and background which is clearly a law-abiding one. Her choice will have significant consequences. It was a choice that, at various times, she could have backed away from but I find, to the beyond reasonable doubt standard, that by the time of her engagement in April 2006 she was actively and continually involved in assisting Mr Moradian in laundering and spending his illicit drug profits. 20As a consequence of her offending behaviour she will lose her liberty. Only a full-time custodial sentence can meet the purposes of sentencing that apply here in relation to each offence. These proceedings have been delayed to enable some IVF treatment which may allow for future impregnation but she has clearly lost a significant opportunity to have a child. She is unable to care for her parents who have many infirmities. Her business will inevitably suffer. She will also suffer from an inability to visit her husband and separation from his son with whom she has a close relationship. I accept that she has regret, shame and remorse for the harm caused to herself, her sister and her parents but in her evidence she showed little insight into how serious her crimes were.
The offences 21The offender's motivation can be understood by analysis of the four offences before the Court. The bulk of the facts are agreed or not subject to significant dispute. They can be found in Exhibit A, Tab 2. There were, however, two issues that require determinations to be made by me.
Factual issues in dispute 22The first issue was who, the offender or her husband, should bear the responsibility for the amounts expended on cash purchases such as jewellery and, in particular, the family home at West Pennant Hills. To a degree this issue, which took much court time, did not require precise resolution: see Weininger v The Queen (2003) 212 CLR 629 at [23] and [24]. This will be clear from what is set out below. 23The second issue involved the nearly $2 million in cash said to have been handled by Mr Alessio Torelli at the offender's bidding. 24As to the first issue, evidence was called, particularly from Mr Chard, a designer associated with the Versace company. He gave evidence on 21 October 2011. He told me that the Versace vision for the West Pennant Hills homes was Mr Moradian's but that he dealt more often than not with the offender. The offender told me her husband formed his Versace vision when they stayed at a luxury Versace hotel on the Gold Coast. She said she was powerless to stop him, his home was his passion and, encouraged by Mr Chard, he was out of control in what was done to the home. Certainly the photographs indicate an extraordinary degree of opulence (Exhibit A, Tab A). 25Mr Moradian was not sentenced for offences relating to the renovation of the home but the fact he was not charged can have no bearing on my decision here. I have no doubt that he provided all the money, which came from his illicit drug business. It is not suggested the offender was involved in this other criminal activity. Nevertheless, it was clear to me that she knew the source of the money and was prepared to play a significant role in spending it. Despite what was pressed upon me by Mr Boulten I do not believe the victim was a victim of an overbearing, violent husband who forced compliance with his wishes. I am certain she wished to please him and to do so she acceded to his vision of grotesque opulence. It is clear from the material before me that many of the purchases were for Mr Moradian's personal use: many thousands of dollars were spent on men's watches, belts, men's necklaces, men's pendants and bracelets. He was prepared to spend thousands of dollars on the renovations and the Versace makeover but many other items were clearly for the benefit of the offender: sandals, handbags, women's necklaces and the like. 26Like most marriages, there was here give and take and mutual responsibility. The offender, it is clear from all the evidence, took on the role of homemaker, even if her own tastes were more modest than her husband's. She was prepared to play an active role in the many cash purchases set out in the material before me. I do not propose to parse each purchase. It is clear, however, from what was said in the evidence by Mr Atmalian, Mr Chard and the other evidence tendered, that the offender herself engaged in handing over cash, both on her own and her husband's part. It is clear that what was done was for their mutual benefit. It is clear that, while she would have preferred a much more low-key approach, she knowingly participated in dealing with close to $2 million for her husband's and her benefit. This, of itself, is a significant crime. 27The second area of dispute involved the cash said to have been handled by Mr Torelli. Objection was taken to Mr Torelli's statement being admitted. That statement was admitted. A separate judgment has been published: see Youkhana [2011] NSWDC 204. Despite a warrant having issued for Mr Torelli's arrest he was not available for cross-examination. The Evidence Act 1995, having been invoked in relation to this evidence, Mr Boulten says properly that I should caution myself before acting on Mr Torelli's statement because he is criminally involved, he admitted lying to the Crime Commission and he could not be cross-examined. I take into account the warnings that should be given pursuant to s 165 of the Evidence Act but, that done, I accept it. It appears compelling despite the obvious problems drawn to my attention by Mr Boulten. I note that much of what was contained in Mr Torelli's statement is against his interest. When the offender gave evidence on 16 November 2011 she confirmed as correct matters that had initially been placed in dispute. She did, however, contest what is set out in summary form in paras [38] to [40] of Exhibit A, Tab 2. Given the material which is before me in relation to the sums of cash available to Mr Moradian, given that the offender's sister, despite having no feelings for Mr Moradian, agreed to help her sister, the offender, by hiding Mr Moradian's cash, given that Mr Torelli had no reason to exaggerate the amount of cash with which he dealt with, his evidence as supported as it is by others such as Ms Bitzmirza and Mr Maciel, can be accepted. 28When the offender gave evidence about these issues she did seek to minimise her knowledge of the amount of cash, which she agrees she took initially to her parents and induced Mr Torelli to mind on her behalf. She also gave an unconvincing account of the return of cash payments. Her evidence on this matter was simply unbelievable. The offender told me she did arrange for Mr Torelli to launder some money and that she did give him $20,000 to make an overseas purchase of a watch on behalf of her husband. She did give him a bag of money which she had taken to her parents' place, presumably to hide there. She was at the time so desperate she contemplated risking leaving money with her aged parents. Whilst, as Mr Boulten points out, it is hypothetically possible that Mr Torelli hid about $1 million at the direct instigation of Mr Moradian without the intervention of the offender, this is so unlikely that I discount it. In all the circumstances, the evidence establishes beyond reasonable doubt that in order to assist her husband dispose of large sums of cash, knowing that the NSW Police and Crime Commission officers had raided co-offenders and were closing in on her husband, she chose to assist him by manipulating her friend, Mr Torelli, into assisting her husband, and thereby herself, as part of the marriage partnership. 29When I consider all the material before me I accept the Crown's submission and what is set out in Mr Torelli's statement (Exhibit G) and summarised in Exhibit A paras [29] to [44]. 30These findings support important conclusions:
Assistance 44Well after his arrest the offender's husband, with the assistance of a solicitor, negotiated the surrender to the NSW Crime Commission of a large quantity of firearms, firearm parts and ammunition. Primarily Mr Moradian directed these surrenders. On 29 April 2011 the solicitor gave evidence that the present offender was also involved (Exhibit 7). He said she gave him photographs of weapons to be forwarded to the NSW Crime Commission. The weapons themselves were, however, delivered by people described as "unknown Middle Eastern fellows". The offender told me she facilitated the delivery of the weapons to the solicitor by meeting these unknown men in a Sydney suburb and having them follow her to the meeting with the solicitor in a Sydney park. She did not directly have anything else to do with the men. She did not discuss anything with the men and she did not take part in all the gun transfers. The offender wishes her role in the surrenders to be acknowledged by reduction of sentence. 45Exhibit B is a report from Detective Sergeant Agius in relation to the surrender. He also gave evidence in Mr Moradian's matter. That transcript was tendered in these proceedings as part of Exhibit 7. The extent of the surrenders includes: a revolver, pistols, rifles (some with military applications), and machine guns. The report of Professor Alpers (Exhibit 8) confirms the extent and nature of the items surrendered. Sergeant Agius, in his report, noted that the police had no direct contact with the offender, that no arrests were made or are likely and that there is no threat or risk posed to the offender by the disclosure. 46The removal of such large numbers of illicit firearms from the community must significantly reduce the risk they would have been involved in, or used to commit, future crimes. As a consequence of the surrender I reduced Mr Moradian's sentence by an additional five per cent to recognise and reward what was done, no matter that it appeared to me his motivation was self-interest and my suspicions generated by his capacity while in custody to influence such a large surrender. Here, as with Mr Moradian, I recognise that s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) gives a court a power to reduce a sentence after having regard to the degree to which an offender has assisted the prevention of other offences. A similar power exists in s 16A(2)(h) of the Crimes Act 1914 (Cth). There would have been no surrender had not Mr Moradian been arrested. The surrender was not timely, he did not demonstrate contrition, it will not lead to future arrests and poses no significant risk to this offender. 47One aspect of the offender's case before me was to the effect that in her dealings with the proceeds of crime she was induced, manipulated and controlled by her husband. I have rejected this assertion. One aspect of the argument for reduction because of assistance is the offender's genuine and independent involvement in the surrender of the weapons. I do accept that she played some logistical role in the surrender but it seems clear that it was a very minimal one. It was her husband, who hoped to apportion some additional benefit to his wife, who controlled the surrender. As she herself told me in evidence, speaking in a general sense, "He was trying to fix a wrong he put me in". 48I will take into account her willingness to assist when I come to consider all matters in mitigation of sentence and their willingness to facilitate, in a most general sense, the course of justice but I could not, and do not, attempt to quantify in a percentage or other term the degree of assistance here. In doing so I note in particular that because of her antecedents and good prospects for the future I intend to extend considerable leniency to the offender and I am conscious of the requirement in 23(3) of the Crimes (Sentencing Procedure) Act that the sentences must remain reasonably proportionate to the seriousness of the offending behaviour.
Conclusion 49It needs to be asked: What sentences would be appropriate here? They were all serious offences. Their seriousness is reflected in the maximum penalties provided by Parliament. Their seriousness is evident from the material comprehensively set out in the Crown exhibits which I have attempted to summarise in these remarks. It is evident that each of the offences is so serious that, despite the fact the offender has no prior criminal history and the subjective material tendered and evidence given, only custodial sentences can be imposed. 50I have regard to the sentences imposed on others involved in Operation Schoale , particularly those who warehoused or otherwise dealt with the enormous sums of money involved. 51Sentences must be individual and the offender's crimes are different than the others. Nevertheless, where possible, a degree of proportionality must be maintained as between those involved in the same criminal enterprise and engaged in similar criminal activity. There can, however, be no direct parity between this offender and others as their crimes were quite distinct from hers. 52I must consider each offence separately and also look at the totality of offending. While proper individual sentences must be imposed, the aggregate sentence must also be just and appropriate. In doing so I acknowledge what was put to me by Mr Boulten, that there is considerable overlap, both in the objective facts of the offences and those purposes of sentencing, which would apply to all of the offences. It is clear that they were part of a course of conduct that had its genesis in the relationship the offender formed with Mr Moradian. I recognise both the need for separate and discrete punishment for each offence and the compounding effects of long sentences: severity is not directly proportional to time served, the longer the sentence the greater its impact. 53I will structure the sentences to give effect to these principles and to allow for a finding of special circumstances. That requires a reduction in the non-parole period for the proceeds of crime offence. Reasons for finding special circumstances include:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 January 2012
R
Natasha YOUKHANA