R v Shadi Salameh

District Court of NSW|2017-03-23

REMARKS ON SENTENCE

The offender is charged with three offences: 1. H62829984/1 - knowingly facilitate organised car re‑birthing activity pursuant to s 154G of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period of 4 years. 2. H62005263/2 - recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment. 3. H58863612/3 - knowingly facilitate organised car re-birthing activity pursuant to s 154G of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole Period of 4 years.
The sentence hearing took place on 23 March 2017. As at that time, the offender had spent 1 year and 1 month in custody as a result of the first of these offences which occurred between 14 January 2014 and 19 February 2016. The offender was arrested on 23 February 2016. The third offence took place between 14 January 2014 and 17 September 2015. Whilst on bail for that offence, the offender committed the first of these offences.
Also charged in relation to the first charge of knowingly facilitate organised car re‑birthing activity, were three co-offenders, Ali Nabulsi, Zacharigh Eid, and Shivneil Reddy. Nabulsi was sentenced by Judge Bennett of this court on 2 March 2017. He was sentenced to a non-parole period of 1 year and 9 months, and a total sentence of 3 years and 6 months. Reddy and Eid were subject to the same sentence hearing which took place on 23 March 2017. They were both sentenced on 7 April 2017, to a non-parole period of 1 year and 2 months, and a total sentence of 2 years and 3 months imprisonment.

The sentence hearing

The Crown sentence summary became Ex A on the sentence hearing. It included the agreed facts which may be fairly summarised as follows. For ease of reference I deal with the offences in chronological order.

H 58863612/3 - Knowingly facilitate car re-birthing activity ("The Milperra Offence")

Vehicle 1 - Toyota Landcruiser GX wagon (VIN No. ending in 5585)

The offender was employed by his family business known as Milperra Spares, situated at Milperra. The business operated as a supplier of second hand vehicle parts and was directed by the offender's father. The offender worked in the business as a delivery driver.
On 14 January 2014, the offender purchased a white Toyota Landcruiser GX wagon (VIN No. ending in 5585) from a Mr Brian Robinson, who had previously purchased the vehicle from Xstrata Mines. The vehicle had been used in a mine and had never been registered in Australia. The purchase price was $13,000.00.
On 24 July 2014, a male, purporting to be the offender's brother, Khaled Salameh, attended RMS offices and established registration of the white Toyota Landcruiser (VIN No. ending in 5585, with engine number 1VD0110841). The male produced Khaled Salameh's driver's licence and a receipt for the sale of the vehicle from Milperra Spares. The purchase price recorded in the application for registration was $25,000.00. The vehicle was issued with registration plates CA 42HL.
Between 5.30pm on 15 August 2014 and 8.15pm on 16 August 2014, a white Toyota Landcruiser GXL wagon (VIN No. ending in 4440, registration number SJ 440), was stolen from Bexley. The vehicle was fitted with in excess of $15,000.00 in optional extras. Sometime after the theft of the vehicle, a re‑birthing process was conducted, wherein the body, engine and drive train from the vehicle was placed onto the chassis of Toyota Landcruiser GX wagon (VIN No. ending in 5585, registration number CA 42HL). A fraudulent compliance and build label was affixed to the vehicle. On 4 May 2015, the registration plates on issue to Toyota Landcruiser CA 42HL were changed to CXY 31J. The vehicle remained registered to Khaled Salameh.
In late April to early May 2015, a Toyota Landcruiser GXL wagon, bearing registration CXY 31J, was listed for sale on the Carsales website, with a sale price of $52,500.00. A Mr Grant Petersen made enquiries with the listed seller of the vehicle, recording the seller's name as Karl, and a phone number.
Mr Petersen inspected the vehicle on Friday 15 May 2015 and agreed to purchase the vehicle for $45,000.00 from Mr Khaled Salameh, who provided the victim with his driver's licence. The victim saw that the image on the driver's licence was that of the person selling the vehicle. He paid a deposit of $2,000.00, and on 18 May 2015, completed a bank transfer for the balance of $43,000.00 directly into the bank account of Khaled Salameh. Thereafter, the vehicle was delivered to him and the victim transferred the vehicle into his name and commenced to use it on a daily basis. The vehicle was seized by New South Police on 5 August 2015. A forensic procedure revealed that the engine on the vehicle was in fact the engine that was fitted to Toyota Landcruiser SJ 440, stolen on 15 August 2014. Numerous accessories were also identified as having come from the stolen Landcruiser SJ 440.
The vehicle purchased by the victim, Mr Petersen, was purported to be the vehicle (VIN No. ending in 5585). The majority of the components fitted to that vehicle were sourced from the stolen vehicle (VIN No. ending in 4440). The swapping of components was performed to increase the vehicle's value.

Vehicle 2 - White 2010 Toyota Landcruiser wagon (VIN No. ending in 4160)

On 30 September 2014, Partington 4WD & Auto purchased a white 2010 Toyota Landcruiser wagon (VIN No. ending in 4160) from Dynamic Car Carrying. The vehicle had been significantly damaged in an accident. Partington 4WD advertised the vehicle for sale on the Gumtree website, and on 1 September 2014, it was sold to Milperra Spares and transported to Sydney.
On 11 December 2014, a white Toyota Landcruiser wagon, GXL (VIN No. ending in 10155) with the registration number CVB 74S, was stolen from Cronulla. The vehicle was in as new condition, having only travelled 7,000 kilometres.
Sometime after the theft of the Toyota Landcruiser GXL wagon (VIN No. ending in 10155), a re-birthing process was completed on that vehicle, whereby the body of the vehicle was removed and refitted to the chassis of a white 2010 Toyota Landcruiser wagon (VIN No. ending in 4160). A fraudulent bill plate was affixed to the passenger side door jamb of the vehicle. The compliance plate was removed from the source vehicle and crudely fitted to the plenum chamber of the re-birthed vehicle.
On 20 May 2015, an application for registration was lodged with RMS for vehicle (VIN No. ending in 4160). The vehicle was registered in the name of Jamal Salameh and issued with registration plates CYN 01A.
On 17 September 2015, the offender's brother, Khaled Salameh, was stopped whilst driving to his place of employment at Milperra Spares. He was driving the Toyota Landcruiser wagon, registration number CYN 01A. The vehicle was inspected and found to be a re-birthed vehicle. The registration records indicated that the vehicle should be a GX specification, yet the body fitted to the vehicle was of the GXL specification. Khaled Salameh was arrested and charged in relation to that vehicle. The re-birthing process of the vehicle increased the value of the vehicle by converting the base model specification into a GXL specification vehicle. A further gain was achieved by the ability to register and use the vehicle from its damaged state.

Vehicle 3 - Grey Suburu WRX Sedan (VIN No. ending in 55877)

On 7 November 2014, a grey Suburu WRX sedan (VIN No. ending in 55877), NSW registration AZB 75M was stolen and involved in a motor vehicle collision. RMS placed the vehicle on a written-off vehicle register and on 25 February 2015 it was sold at auction to Onburst Auto Parts, Revesby.
Between 11pm on 28 February 2015 and 8.15am on 1 March 2015, a white Suburu WRX STI motor vehicle (VIN No. ending in 52321), NSW registration CRK 29A, was stolen from Granville.
On 14 July 2015 a business inspection was conducted at Milperra Spares, Milperra, to ensure compliance with regulations specified in the Motor Dealers and Repairers Act 2013. During the inspection of premises, a white Suburu Impreza WRX STR sedan was inspected in the main workshop area of the premises. Discrepancies were identified between the compliance plates affixed to the vehicle and the VIN located on the vehicle. A factory fitted alarm system had been removed from the vehicle and placed in its boot. Checks of the vehicle indicated the vehicle to be a stolen Suburu WRX STR sedan registration number CRK 29A.
The offender claimed ownership of the vehicle. He claimed he had purchased it from a person named "Abdul" and paid $8,500.00 for the vehicle with the intention of making it into a track car. The offender stated that he had made no attempt to check the authenticity of the vehicle prior to purchase, and that he was in possession of a receipt for the vehicle at his address in the Northern Territory.
At the conclusion of the interview, the offender was informed that the vehicle was to be seized as a stolen vehicle, which required further examination. He struck the vehicle with his right foot, damaging the right-hand front guard of the vehicle, and then struck the passenger side mirror, breaking it off from the vehicle. The offender was asked to supply a receipt for the purchase of the vehicle.
On 21 July 2015, Khaled Salameh emailed a copy of the document purporting to be a receipt for sale of the vehicle to Shadi Salameh for $8,500.00 from Abdullah Ismail, dated 19 June 2015. The document was fraudulent, as the licence number was unknown. Further, Abdullah Ismail was not known at the address provided.
On 29 July 2015, a forensic examination was conducted on the vehicle. The VIN number was found to be altered, by having a metal plate fitted over the plenum panel. The compliance and manufacturer identification plates fitted to the vehicle showed evidence of having been removed and replaced. These identification plates had originated from the grey Suburu Impreza sedan, registration number AZB 75M.
Enquiries at Onboost Auto Parts showed that the vehicle had been sold on 13 June 2015 to Abdullah Ismail for $2,700.00. In fact, the transactions occurred on 15 July 2015. No explanation could be given for the discrepancy of the receipts being out of date order, however, the owners of Onboost Auto parts are related to the offender and to the owners of Milperra Spares.
The re-birthing process involving this vehicle was undertaken in an attempt to legitimise a stolen vehicle.
The offender and his brother Khaled were arrested on 17 September 2015, and declined to participate in an interview.

Facts in relation to offence of recklessly deal with proceeds of crime

Ateam Automotive is a business owned and operated by Kassam Ammouri and his family. On 28 September 2015, Mr Ammouri agreed to rent a section of the business premises situated at Ashford Avenue, Milperra, to the offender.
Between 28 September 2015 and 25 November 2015, the offender and a co-offender Mohamad Awad, were involved in the dismantling of 12 stolen vehicles inside those premises. The vehicles were driven to a communal car park at Ashford Avenue, Milperra, by unknown persons, where the number plates and all personal property were removed from them. The offender was then observed to reverse the vehicles into the workshop of the premises.
When they attended the premises, both the offender and his co-offender Awad, were dressed in Milperra Spares work uniforms. They attended the premises after Milperra Spares had ceased trading for the day. The offender was employed by Milperra Spares as a delivery driver, and his co-accused, Awad, was also employed there in the capacity of a vehicle dismantler.
The offender was observed to drive a forklift at the premises. Once dismantled, the vehicles were removed from the workshop by the offender. When they were removed from the workshop, they were missing all drive train components, consisting of wheels, suspension, engines and transmissions. Damage to the panels and windows of the vehicles was also evident when they were removed from the workshop.
Once removed from the workshop, the vehicles were loaded by the offender onto a white flat-bed Hino truck, registration BA6 5TC. The vehicle was owned and operated by Sydney Metal Traders situated at Greenacre. The vehicles were then removed from the site.
On 25 November 2015, police identified six stolen vehicles at the car park in the communal area at Ashford Avenue, Milperra. Inside the premises were located a further three stolen motor vehicles. A crime scene was declared and a crime scene warrant granted. On 26 November 2015, the premises were processed, and 12 engines were located inside the premises, each being identified as from the 12 stolen vehicles. Each had been professionally removed from its vehicle. All the vehicles displayed ignition barrel damage consistent with the theft of the vehicle.
Drive train components were located at the rear of the premises. An amount of glass and fluid was identified in the premises consistent with the dismantling of vehicles inside the premises. A pile of pre-cut lengths of seatbelt material was also located in the premises.
The owner of the business, Mr Ammouri, identified the offender as the person responsible for the vehicles and engines located in the premises. He also identified the other male persons working with the offender. The offender had leased the premises for $500 per week, and had informed Mr Ammouri that the vehicles they were bringing to the workshop and dismantling were stolen recovered vehicles, sourced from an insurance broker.
The offender declined to make a Record of Interview.

H 62829984/1 - Knowingly facilitate car re-birthing activity ("The Punchbowl offence")

The facts in relation to the first offence listed above are as follows:
On 28 January 2016, the offender was identified with his three co‑offenders at premises at Bramhall Avenue, Punchbowl, where stolen vehicles were being stored and dismantled. A covert surveillance device was established on 5 February 2016 to monitor the activities at those premises. At that time, there were two vehicles identified in the yard of the premises, both being Toyota Aurions. Two of the co-offenders, Eid and Reddy, were observed to dismantle those vehicles by removing the engines, together with drive train components. The remainder of the vehicles would then be damaged by means of a forklift before being stored. The co-offender Nabulsi, was identified to deliver stolen vehicles to the premises and to direct the activities of the two co-offenders, Eid and Reddy. The offender was identified to deliver vehicles and food to the premises for the co-offenders, Eid and Reddy. The offender was also identified receiving parts removed from the vehicles when they were dismantled.
On 11 February 2016, surveillance revealed three Toyota forklift vehicles, stolen on 7 February 2016, in the yard of the premises. On the same day, one of the four vehicles that were stolen in the eastern suburbs of Sydney, was observed to be dismantled by the co-offenders Eid and Reddy. Throughout that day, those co-offenders were observed to engage in other activities involving dismantling of vehicles at the premises. The co-offender Nabulsi was observed to load various component parts, including engines, by means of a forklift, into the rear of a van, in the presence of the offender. The co-offender Nabulsi then drove the van from the premises, returning that afternoon to load a further engine into the rear of his van.
On the evening of 11 February 2016, four Toyota Aurion motor vehicles and a Toyota Landcruiser was stolen from the Marrickville area. At 2.31pm on 12 February 2016, the offender was observed to reverse one of the stolen vehicles, a 2011 Toyota Landcruiser, registration number CD 73CX into the compound at Bramhall Avenue, Punchbowl. The co-offender Eid, immediately removed the front number plate from the vehicle, and the offender was observed to walk away from the vehicle wearing black gloves on both hands and carrying a black backpack. A short time later, the offender observed driving another stolen vehicle, Toyota Aurion BW 79ST into the compound, wearing the black gloves on both hands. The co-offenders, Eid and Reddy, then commenced to dismantle the vehicles and remove their contents.
At 5.48pm on 12 February 2016, during a lawfully intercepted telephone conversation, the offender invited the co-offender Eid, to come to his house so that the offender can "give Zach some money and money for his mate as well".
At 4.07am on 12 February 2016, three vehicles were observed to enter the compound, which were identical to those stolen the previous night in the Marrickville area. Those vehicles were dismantled by the co-offenders, Eid and Reddy.
At 12.12pm on 13 February, the co-offender Nabulsi, attended the premises in his van and two engines were loaded into the back of his van. At 12.20pm the offender arrived at the premises with a cousin, and a large amount of suspension components removed from the vehicles were loaded into the rear of the offender's vehicle.
At 1.50pm, the offender returned to the premises and a further amount of suspension components were loaded into the rear of the his vehicle. At 2.30pm the offender was observed to drive a stolen Toyota Landcruiser, registration number CD7 3CX into the premises. He then momentarily left the premises, but at 2.37pm was observed to drive a stolen black Toyota Aurion, registration number BW7 9ST into the premises.
At 10.06am on 13 February 2016, in a lawfully intercepted telephone conversation, the co-offender Eid, told the offender that he was at "the shop", and that only two loads had been done. "The shop" was the premises at Bramhall Avenue, Punchbowl, and the "loads" related to the removal of vehicle bodies from those premises and the disposal of those bodies at Sydney Metal Traders.
On 13 February 2016, two truckloads of vehicles were removed from the premises.
On the evening of 14 February 2016, three Toyota Hi-Lux vehicles were stolen from the South Western Sydney area. At 10.22am on 15 February 2016, the offender received an SMS message from a known person, referring to "glass for a Landcruiser". At 1.14pm that afternoon, in a lawfully intercepted telephone conversation, the offender said to the co-offender Eid, "come out with the part in one minute. No, come out now, in 30 seconds". The co-offender Eid, was then observed to carry motor vehicle window glass to the front of the premises.
At 1.17pm on 15 February 2016, the offender walked into the premises with his co-offender Eid. Both walked to the front of a stolen Toyota Landcruiser, registration number CD7 3CX, and the offender was observed to point to the front of the Landcruiser and appear to give directions for the dismantling work carried out by the co-offenders, Eid and Reddy. The offender stayed at the premises for a short period of time before walking to the front of the premises with the co-offender Eid.
At 4.31pm on 15 February 2016, during a lawfully intercepted telephone conversation, the offender had a conversation with an unknown male, who identified himself as being employed by Arjan Motors. The offender told that person he had a quarter glass for a Landcruiser which he wanted to drop off in 10 minutes. The unknown male said that he would wait for the offender.
On 16 February 2016, the co-offenders, Eid and Reddy, were observed dismantling several stolen vehicles at the premises. The co-offender Nabulsi, was observed to deliver a number of known stolen vehicles to the premises throughout the day.
On 18 February 2016, the co-offenders, Eid, Reddy, and Nabulsi, were observed at the premises in the afternoon loading a large number of suspension components into the rear of Nabulsi's van. At 2.30pm, they left the premises.
On 29 February 2016, a search warrant was executed at the Bramhall Avenue, Punchbowl premises. The three stolen forklifts were identified in the yard of the premises, with bodies and chassis of 11 stolen vehicles, together with a substantial amount of personal property from the stolen vehicles.
At 11am on 19 February 2016, a business inspection was conducted at the premises of Bankstown Mechanical Repairs, at Bankstown. During that inspection, police located in excess of 16 motors removed from vehicles processed at the Bramhall Avenue premises. The licensee of those premises stated that the co-offender Nabulsi had rented a section of the workshop to store the motors.
During the inspection, the co-offender Reddy, was observed to be carrying out mechanical work on one of the identified stolen engines. He was arrested.
During the inspection, the co-offender Eid returned to the premises of Bankstown Mechanical Repairs and observed the co-offender Reddy being arrested. He fled in the motor vehicle of Nabulsi, which was located abandoned in a nearby street. In a lawfully intercepted telephone conversation between the co-offender Eid, and the offender, Eid stated: "We are fucked, the cops are all over us."
In subsequent phone calls between the pair, the co-offender Eid arranged for the offender to collect him from a nearby street.
Over the 14 day period investigators monitored the activities of the four offenders, they observed 16 stolen vehicles. Those vehicles had an estimated value in excess of $550,000.00. In removing the engines from the vehicles, the vehicles were destroyed, rendering them unusable.
The offender was arrested on 22 February 2016, and declined to participate in any form of interview. Following the execution of the search warrant at the Bramhall Avenue premises, and a crime scene warrant executed at premises at Bankstown, four additional vehicles were identified as stolen, in addition to those outlined above. They were a white Toyota Hi-lux, registration number AEO 9ZP; white Toyota Hi-lux, registration number CZG 24N; blue Toyota Aurion, registration number AN6 9UL; and silver Toyota Aurion, registration number BCC 48N.
On 1 February 2016, call charge records showed the mobile phone service of the offender at Rockdale at 10.28pm. That night, motor vehicles registered numbers AEO 9ZP and CZG 24N were stolen from Kyeemagh. Another vehicle, registration number AN6 9UL, was stolen from Brighton Le Sands. Rockdale, Kyeemagh and Brighton Le Sands are adjacent suburbs.
Vehicle registration number AN6 9UL was identified driving into premises at Marshman Avenue, Kingsgrove, where a further vehicle, BCC 48N was stolen from the underground car park. A close associate of the offender was known to reside in that unit complex.
Surveillance identified car vehicle bodies identical to the four vehicles stolen on 1 February 2016, being disposed of to Sydney Metal Traders on 13 February 2016. The engines of each of the four vehicles were located at the Bankstown premises on 19 February 2016, in an area identified as being leased to, and used by the co-offender Nabulsi.
A bronze Toyota Corolla, registration number CRT 63N was also identified as a result of the search and crime scene warrants being executed. On 5 February 2016, call charge records relating to the mobile phone service of the offender were located at North Kogarah. On the same night, the bronze Toyota Corolla, registration number CRT 63N was stolen from Kogarah. This vehicle was observed on the surveillance footage at the Bramhall Avenue premises, and was disposed of at Sydney Metal Traders on 13 February 2016. On 15 February 2016, a series of SMS messages were lawfully intercepted on the mobile phone of the offender, between the offender and a known person. The messages relate to a request for the offender to supply a headlight for a Corolla on a specific side of the vehicle. Immediately following those SMS messages, a lawfully intercepted telephone conversation between the offender and co-offender Eid, was as follows: "Offender: Corolla headlights. Are they there, 2? Co-offender Eid: Yeah I got 2 yeah. Offender: Yallah I'm coming to pick them up."
At 10.21am the co-offender Eid, was observed to obtain two headlight assemblies from within a storage container at the premises and walked the headlight assemblies to the front of the premises. A few minutes later the co-offender Eid, was observed to return from the front of those premises carrying a white plastic bag, from which he passed an item to the co-offender Reddy, and removed his gloves and commenced to eat. Telephone records of the offender indicated that he was in the vicinity of the Croatian Club, Punchbowl, at that time, which was within 100 metres of the premises at Bramhall Avenue, Punchbowl.
Motor vehicle parts removed from the Toyota Corolla, registration number CRT 63N were located at the Bramhall Avenue premises. The engine of that vehicle was located at the Bankstown premises on 19 February 2016.

Crown Evidence on the sentence hearing

Exhibit A also included the criminal antecedents of the offender. They included offences of common assault and affray in 2009, for which bonds to be of good behaviour, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") had been imposed. In 2013, a further bond pursuant to s 9 to be of good behaviour for 18 months was imposed in respect of a charge of possess or use a prohibited weapon without permit. The only other offences were traffic offences for which the offender had been fined.
Exhibit B comprised the Agreed Facts in respect of the co-offender Nabulsi, together with his criminal record.
The offender's call-up for breach of bond concerned breach of the s 9 bond to be of good behaviour for a period of 18 months, imposed by the District Court on 21 June 2013, in respect of the offence of possess and use prohibited weapon without permit. That was an offence under s 7(1) of the Weapons Prohibition Act 1998 ("WPA"), which carried a maximum sentence of 14 years imprisonment and a Standard Non-Parole Period of 3 years.
Exhibit C on the sentence hearing included the breach of bond instruction sheet and the remarks on sentence of his Honour Judge Sides at the District Court at Parramatta on 21 June 2013. The offence concerned his possession of a taser at Kingsgrove on 26 August 2011.
The taser was found in a safe, identified by police during a search of the offender's home on 26 August 2011. The sentencing judge noted that the offender was then 22 years of age and that he had a sound work history in his family business and was training to become a mechanic. The only matters on his record were the offences of common assault and affray, for which he had been sentenced to a period of imprisonment of 9 months, suspended upon him entering a bond pursuant to s 12 of the CSPA. His Honour noted that the fact that custodial sentences were imposed indicated that those were relatively serious offences.
The offender had obtained the taser when he was 16 years of age. It was in a safe in his bedroom, and there was no evidence that it had been used. His Honour found the objective seriousness of the offending was towards the very low end of the range, and that the offender had excellent prospects of rehabilitation.

The offender's evidence on sentence hearing

Exhibit 1 was a bundle of documents tendered by the offender by consent. It contained a letter of apology from the offender (Ex 1.1), a report of Dr O Nielssen dated 17 March 2017 (Ex 1.2), and five character references.
In his letter of apology, the offender expressed remorse for his criminal conduct. He outlined that in his early 20's he fell into the wrong company and found himself drinking excessively and started using cocaine. He quickly became addicted with a habit which was costing him $1200.00 every two days. He also had a gambling habit. He was working as a delivery driver for his family's business and unable to support his illicit drug and alcohol use, and gambling abuse. He therefore turned to car re-birthing to obtain extra income. He was arrested, and the car re-birthing operation ceased before any money could be made.
The offender acknowledged the seriousness of his offending and accepted responsibility for it. During his time in custody he had realised the consequences of his various addictions and was determined to engage in rehabilitation, both whilst in custody and following his release.
The offender had also had time to think about the consequences of his actions and the impact of his criminal conduct on the victims and the community. He also acknowledged the pain and suffering his family had gone through as a result of the shame he had brought them. He was determined to complete his motor mechanics trade certificate, of which he had half a semester left.
Dr Nielssen recorded that the offender had told him that his criminal conduct stemmed from debts arising from his use of drugs, especially cocaine, and poker machine gambling. In 2015, he was arrested for a car re-birth at the family business which concerned the stolen vehicle that he intended to make into a track car.
In addition to his cocaine addiction, the offender had developed a dependence on sedative and pain relieving medication, which he took to help overcome anxiety, depression, paranoia and insomnia associated with cocaine use. He had stopped using drugs in prison, which he expected to be a permanent change.
Dr Nielssen took a history that until late 2015 the offender had lived with his parents and worked every day in the family business at Milperra. After a falling out with his family, he had moved to live with a close friend, and was staying with her up to the time of his arrest.
Other than anxiety, Dr Neilssen reported no significant psychiatric or medical history. Further, there was no history of admissions to drug rehabilitation centres, or any substance‑related counselling. However, the offender recognised the risk of relapse and planned to complete rehabilitation programs after his release. Dr Neilssen diagnosed a Substance Abuse Disorder in remission, an Anxiety Disorder in remission, and a gambling disorder. He was of the opinion that the offender had recovered from the combination of disorders that created the financial problems that led to his criminal activity, and that he had good prospects for rehabilitation because of his qualifications, his history of continuous employment and his renewed support from his family. Dr Neilssen concluded: "His longer term prognosis would appear to be directly related to the future course of his substance abuse disorder, which in turn would affect the likelihood of further anxiety symptoms and a relapse of gambling behaviour. Hence his return to the community should be accompanied by participation in longer term substance use counselling and a regime of regular drug testing is recommended."
Exhibit 1 also included testimonials from the offender's mother, sister-in-law, business associates, and uncle. They speak highly of his commitment to his family, his previous good work ethic, his remorse for his criminal conduct, and his determination to return to being a responsible member of the community.

The Crown sentencing submissions

The Crown submitted that the maximum penalty of 14 years reflected the seriousness of the offence pursuant to s 154G of the Crimes Act 1900. The maximum penalty serves as a yardstick or as a basis for comparison between the worst possible case and the case now before the court. The Standard Non‑Parole Period of 4 years imprisonment was also a yardstick in the sentencing process.
In respect of the first offence concerning car re-birthing between 14 January 2014 and 17 September 2015 (the Milperra offence), the Crown submitted that the objective seriousness of the offending was within the mid-range of objective seriousness for an offence pursuant to s 154G. The offending spanned a period of 20 months. The first white Landcruiser (vehicle 1) was purchased on 14 January 2014 and after re-birthing, was sold at a profit of $32,000.00. The second white Landcruiser (vehicle 2) was purchased on 30 September 2014 and thereafter re-birthed. On 14 July 2015, the offender claimed ownership of the re-birthed grey Suburu (vehicle 3). In respect to this matter, the Crown noted that the co-offender, Khaled Salameh's trial was listed before the District Court in August 2017.
The Crown submitted that the objective seriousness of the second offence of knowingly deal with proceeds of crime, pursuant to s 193B(3) of the Crimes Act 1900, was within the mid-range of objective seriousness for an offence under that section. The Crown submitted that the offending took place over a period of eight weeks and four days. The offender had leased a workspace, paying a lease fee of $500 per week for the purpose of carrying out the offending. During that time, the offender and his co-offender dismantled 12 stolen motor vehicles at the premises. A further three stolen motor vehicles were located in the premises by police. The offender drove the stolen vehicles into the workshop and operated a forklift at those premises. Once the vehicles were dismantled, the offender removed them from the premises and placed them on a flat-bed truck, removing them from the site. The value of the proceeds of crime were substantial. The co-offender, Awad, was listed for sentence before the District Court on 1 June 2017.
In respect of the second car re-birthing offence that took place between 28 January 2016 and 19 February 2016 (the Punchbowl offence), the Crown submitted that the objective seriousness of the offending was substantially above the mid-range of objective seriousness for an offence pursuant to s 154G. The offender's involvement spanned from 28 January 2016 to 19 February 2016. His role was managerial and supervisory, and he paid the co-offenders for their work. The offender engaged in the business side of the operation, selling the parts of the stolen vehicles, and was observed to wear gloves at the premises. He was also observed to receive parts removed from the stolen vehicles and transport them from the premises. The Crown submitted that the scale of the operation, based on the number of stolen vehicles involved and the monetary value of the vehicles processed in the course of the operation, was significant.
The Crown submitted that general deterrence was important to deter others from involvement in car re-birthing and to send a clear message to others that re-birthing activity will result in punishment that will far outweigh any illegal benefits. The new offence's maximum penalty is greater than that of offences which had previously caught this type of criminal activity, and required sentences to be imposed to reflect the legislatures' purpose and concerns. Not only had the maximum penalty been increased from 10 years to 14 years, however, the new s 154G applied to any one step in the process of car re‑birthing. It was submitted that every step in the re-birthing industry is necessary and interrelated and that the section encompassed a wide range of criminal activity.
It was submitted that the legislature had provided that questions of hierarchical structure were irrelevant to proof of an organised nature of the activity. The relevant provision recognises that this offence is usually committed by a loosely associated web of offenders, rather than within the type of hierarchy usually associated with drug offences. The Crown submitted that provided the activity is planned, or organised, or structured, or is carried out more than once, and involves more than one offender, and is carried out for profit or gain, the offence is made out, relying on R v Hello & Ors [2010] NSWCCA 331 at [30].
The Crown submitted that the offender was entitled to a discount for his plea of guilty.
The Crown submitted that the following aggravating factors applied: 1. That the offences were committed in company, pursuant to s 21A(2)(e). 2. That the offence was committed while the offender was on conditional liberty, pursuant to s 21A(2)(i). 3. That the offence involved multiple victims or a series of criminal acts, pursuant to s 21A(2)(m). 4. That the offence was part of a planned or organised criminal activity, pursuant to s 21A(2)(n). This applied only to the knowingly deal with proceeds of crime offence, number 2. 5. The offence was committed for financial gain, pursuant to s 21A(2)(o). This also applied only to the knowingly deal with proceeds of crime offence.
The Crown submitted that the approach to sentencing for multiple offences involved the court fixing an appropriate penalty for each offence, and then considering the application of totality and whether there needs to be an adjustment to the sentences imposed to achieve the total effective sentence consistent with this principle. The aggregate or overall sentence must be "just and appropriate" to the totality of the offending behaviour. The Crown also submitted that it was open for the court to apply the principle in Veen v R when sentencing an offender for two offences, in light of an offence committed earlier in time - particularly where the second offence reflects an escalation in offending, relying on Isaako v R [2012] NSWCCA 115, and Tan v R [2013] NSWCCA. The commission of second and subsequent offences will be met with significant punishment where the importance of deterrence is heightened, relying on R v Gibbons [2013] NSWCCA 166.
The Crown submitted that in order for special circumstances to be made out, there must exist significant positive signs that show that if the offender is allowed a longer period on parole, that rehabilitation is likely to be successful, and that this is not merely a possibility, relying on R v Tuuta [2014] NSWCCA 40 at [57].
On the basis of his previous criminal history, the Crown submitted that the offender was not entitled to leniency.
In oral submissions, the Crown submitted that the facts established show that the offender was the highest in the hierarchy involved in the organised activity. He was followed by Nabulsi, and at the bottom of the hierarchy were the co-offenders, Eid and Reddy. In relation to the offender and the co-offender Nabulsi, principles of parity would apply. There were however, distinctions between the two offenders, for example, Nabulsi had asked the court to take into account an offence on the Form 1, and in respect of his criminal record, a previous motor vehicle offence in the ACT was a minor offence which attracted a fine. The offender had a less serious criminal record, but was on conditional liberty when the offending took place.
The Crown submitted that whilst Nabulsi at times directed the dismantling of the stolen vehicles, the offender was in fact the boss. He was involved in the business side of the operation. The facts establish that he took telephone orders for parts and saw those orders filled. He also paid for the labour of the co‑offenders Eid and Reddy. On that basis, the Crown submitted that the offender was superior to Nabulsi in the operation, based on inferences positively drawn from the established facts. There were also significant differences in the criminal history of the co-offender Nabulsi and the offender. In 2003, Nabulsi had been sentenced to two s 9 Bonds. In 2004, he had a home detention sentence imposed on him. The offender, however, had the two s 12 Bonds imposed in 2010, together with the s 9 Bond in 2013.

The offender's submissions

Learned Senior Counsel for the offender relied on a thorough outline of written submissions, in which it was submitted that the offender's criminal conduct was borne of his use of illicit drugs which had commenced during his teenage years and developed into a pronounced cocaine addiction. He had also developed a gambling addiction. It was conceded that the threshold in s 5 of the CSPA had been crossed and no sentence other than imprisonment was appropriate. It was further conceded that the overall term of imprisonment would exceed 2 years, and that there is no alternative to full time custody.
The offender submitted that the objective seriousness of the offending for the Milperra offence, pursuant to s 154G of the Crimes Act, fell towards the lower end of objective seriousness. The second offence of knowingly facilitate organised car re-birthing activity (the Punchbowl offence), fell within the mid‑range of objective seriousness.
The offender submitted that the offence of recklessly deal with proceeds of crime fell within the mid-range of objective seriousness for the offence pursuant to s 193B(3) of the Crimes Act 1900.
It was submitted that a finding of special circumstances should be made pursuant to s 44(2) of the CSPA, and that the principle of totality required that there be substantial concurrency in the structure of any sentence imposed.
It was further submitted that the offender was entitled to a 25% discount from the notional head sentence, on the basis that he had entered early pleas of guilty on 12 September 2016, whereupon his matters were committed to the District Court for sentence.
Those principal submissions were complemented by detailed written and oral submissions.
In assessing the objective seriousness of the offending, the offender referred to the three integers identified in R v Tannous [2012] NSWCCA 243, per Basten JA at [40] as follows: "(1) The fact of involvement will frequently allow an inference that those involved were cognisant with the overall scope and purpose of the activities, even if their own roles were limited to a particular stage of the process. (2) The profit obtained from the activities will be a relevant consideration, if it is capable of being identified. (3) The time over which the activities were conducted is a relevant consideration."
It was submitted that the Milperra offence concerned three vehicles and traversed a period of 20 months, although that period should be treated with some caution. The relatively small number of vehicles demonstrated lower culpability. It was submitted that the role of the offender within the organisation remains an important consideration, and that the offender performed a minor role regarding the first vehicle (VIN No. ending in 5585), his involvement being limited to the purchase of it. An inference could be drawn from the agreed facts that it was the offender's co-offender brother, Khaled, who was the person involved in the re-birthing process.
Similarly, it was submitted that there was no evidence to suggest that the offender was personally involved in the re-birthing process of the second vehicle (VIN No. ending in 4160). His role was limited to his involvement with Milperra Spares and personal knowledge of the illicit activity. Again, the inference available was that it was his co-offender who is the primary offender.
It was submitted that the offender had a similar role with respect to the third vehicle (VIN No. ending in 55877). The sole difference here was that he claimed ownership of the vehicle. There was no evidence to suggest that it was intended to be sold or eventually to be driven on public roadways. Dr Nielssen had reported that the offender stated he intended it to be a track car.
The offender relied on the Court of Criminal Appeal's decision in R v Hamieh [2010] NSWCCA 189, in which the Court dealt with an offence concerning two vehicles, considerable planning, enterprise and purpose, and financial motive. The Court assessed the offending conduct to lie "about half-way between the lowest end and the mid-range of objective seriousness". By way of comparison, the Milperra offence fell towards the lower end of objective seriousness, given the absence of considerable planning, enterprise and financial motive. There was no evidence of profit generation or allocation to the offender.
The offender acknowledged that the sentence is aggravated by the circumstance that the offender was serving a s 9 good behaviour bond imposed by the District Court at Parramatta on 21 June 2013, for a period of 18 months.
In respect of the Punchbowl offence, the offender accepted that the number of cars involved (18), overwhelmed any moderation in culpability that may have attached to the short period of the offending (three weeks).
In Hello v R [2010] NSWCCA 311, the Court of Criminal Appeal had characterised a re-birthing activity that involved 20 vehicles and had traversed several months, as "substantially above the mid-range of objective gravity". At least some of those cars had been sold to members of the public and presumably were operated on public roadways. The offender submitted that the objective seriousness of the Punchbowl offence was comparatively less than that case, and fell within the mid-range.
It was conceded that the offender had some involvement in overseeing and directing the operations conducted at Punchbowl, and he played an important role consisting of: 1. "Driving stolen vehicles into the workspace. 2. At times directing which vehicle parts were required, and 3. Collecting from the workspace various vehicle parts."
It was submitted on behalf of the offender that the Crown had not alleged that he was involved in vehicle theft, directing the sale of re-birthed vehicles or performing illegal activity under contract for hire. Also, the 18 vehicles were not sold to unassuming buyers. There was no evidence to suggest that the assembled vehicles were not roadworthy or otherwise unsafe. No unroadworthy vehicles were driven on public roadways, thereby placing road users and pedestrians at risk. The agreed facts suggested that the offender was involved in the dismantling of stolen cars for the purpose of providing parts, presumably for others to undertake the substantive re-birthing process. Like the Milperra offence, there is no evidence of profit generation or profit allocation to the offender.
The offender accepted that the sentence for this matter is aggravated by the circumstances that the offender was on conditional bail for the Milperra offence, and the proceeds of crime matter.
The offender submitted that the offence of recklessly deal with the proceeds of crime fell within the mid-range of objective seriousness, perhaps towards the higher end of that range. It was submitted that the offences, contrary to s 154G of the Crimes Act 1900, were more serious, and that being so, the principle in R v Di Simone (1981) 147 CLR 383, required the Court to disregard any notion that 21 vehicles were used in or being prepared for car re-birthing.
It was submitted on behalf of the offender that his financial motivation, borne of his drug and gambling addictions, did not aggravate his offending for two reasons: 1. "A financial motive is inherently an integer of each offence, and 2. A financial motive to fund a drug addiction normally is not an aggravating factor, nor does it increase an offender's moral culpability."
The offender relied on Hajazi v R [2009] NSWCCA 282, and Cicciarello v R [2009] NSW CCA 272. In respect of one vehicle there was no financial motive. That concerned vehicle number 3 in the Milperra offence, which the offender intended to keep as a "track car".
The offender referred to his long history of drug and alcohol abuse, and the diagnoses made by Dr Nielssen of Substance Use Disorder and Anxiety Disorder, both in remission, together with a Gambling Disorder. It was not submitted that there was a significant causal nexus between the offender's mental health and the offending, or that his moral culpability should be moderated in the manner considered in Muldrock v R [2011] HCA 39. Rather, the diagnoses highlighted the fact that the offender participated in the offending to feed his drug and gambling addictions, and are therefore relevant as subjective circumstances affecting the offender.
The offender submitted that he had good prospects of rehabilitation. He had abstained from illicit drug use and alcohol consumption since entering into custody. Breaking the link between drug use and gambling, through demonstrated drug abstinence, was a matter that bodes well for the offender's future. He had previously not participated in any long-term substance abuse counselling or residential drug rehabilitation programs, but was eager to do so upon his release. He now had insight into his drug addiction, and it was submitted that the offender has real prospects of rehabilitation. The offender himself understood the risk of relapse he faced unless he engaged in drug related programs.
The offender had been unable to participate in any educational courses whilst in custody to date. However, he had a skill set for employment in the automotive industry and hoped to complete his studies upon his release. The testimonials tendered on his behalf spoke of his good work ethic and "respectful and professional manner".
It was submitted that the offender had close community ties. He had, since abstaining from drugs, reconciled with his family, which would assist his return to the community. This would provide him with a strong motivation to abstain from crime in the future.
The offender submitted that the court would find special circumstances on the following bases: 1. The combined circumstances of family support, prospects of employment and real prospects of rehabilitation. 2. First time in custody. 3. The offender required continued assistance in the supervision of his efforts to abstain from drug use. 4. The accumulation of three sentences may require adjustment to the ratio in order to adhere to the totality principle. 5. The offender's relative youth, he being 25 years of age.
It was submitted on behalf of the offender that he had shown genuine remorse and gained considerable insight into his offending. That had been expressed in his letter to the court, and also in the testimonials written by others on his behalf, which spoke of his "shame and regret" for his offending.
Finally, the offender relied on principles of parity by reference to the sentence imposed on the co-offender in the Punchbowl offence, Nabulsi, who was sentenced by Bennett DCJ on 2 March 2017. In sentencing Nabulsi, his Honour took into account on a Form 1 the related offence of possess implements to enter/drive conveyance, contrary to s 114(1)(b) of the Crimes Act. It was submitted that the offender's role in the Punchbowl offence was not dissimilar to that of Nabulsi. He drove some of the vehicles onto the premises, directed some dismantling and removed some parts from the premises. It was submitted that he should receive a lesser term of imprisonment on the basis that Nabulsi had a Form 1 offence taken into account, and had multiple prior convictions relating to vehicle theft, vehicle parts theft, receiving stolen property, and possessing implements to enter a conveyance. Nabulsi was also convicted in 2005 in the ACT for the offence of "number plate/rego not properly issued/issued for another vehicle". Further, there was an age discrepancy in that Nabulsi was 44 years old at the time of sentencing.
In oral submissions, Learned Senior Counsel for the offender submitted that in respect of the call-up on the s 9 Bond, the court would not, in dealing with the call-up, add to any aggregate sentence imposed on the offender.
As to the role of the offender and a comparison with that of the role of Nabulsi, which was relevant to the principle of parity being applied, it was submitted that the Crown's submission that the offender was the boss of the operation was based on positive inferences to be drawn from the facts. Whilst Nabulsi at times directed the dismantling operation, the offender was involved on the business side of the operation. He saw orders filled and paid for the labour of the co-offenders Reddy and Eid.
There were also differences in the criminal antecedents of the offender and Nabulsi. Nabulsi in 2003, had two s 9 Bonds imposed on him, and in 2004 was sentenced to a period of home detention. The offender, on the other hand, had two s 12 Bonds imposed in 2010, and a s 9 Bond imposed in 2013.
It was submitted that the Court would not accept the submissions made by the Crown in relation to the hierarchy of the operation. There was no material greater culpability involved in the roles of the offender and Nabulsi. The Crown's submissions were untenable on the facts, in that no inference was available that the offender had the power of directional control over Nabulsi. There were also differences in their subjective factors which told against Nabulsi by comparison with the offender. Both the offender and Nabulsi had entered early pleas of guilty. It was submitted that if any difference was to be detected in the offending conduct of the two co-offenders, it would weigh in favour of the offender. Applying principles of parity, that would lead to a lesser sentence for the offender in respect of the Punchbowl offence, than the one imposed on Nabulsi. Also relevant was the Form 1 that Nabulsi had asked to be taken into account in respect of an offence for which he had admitted his guilt.
Learned Senior Counsel also referred to the subjective factors involved. The offender had close family ties and good prospects of rehabilitation, given his family support. His trade references were of significance and he had good prospects once he had completed those qualifications.
Further, the court would make a finding of special circumstances pursuant to s 44(2) of the CSPA, based on the matters outlined in the psychologist's report. In particular, his prospects of rehabilitation which were now good, given both the pharmacological reasons set out, and his attitudinal change. He had come close to obtaining his trade qualifications and all of those matters meant that he had real prospects of a successful rehabilitation.
Finally, it was submitted that even having regard to the Milperra offence, and the second offence of reckless dealing, on principles of parity, the offender ought not be sentenced to a term of imprisonment greater than that imposed on Nabulsi. Rather, any term of imprisonment should be less than that imposed on Nabulsi.

Submissions in reply

The Crown submitted in reply that the age difference between the offender and Nabulsi was of little moment, as both co-offenders were well into adulthood at the time of the offending. Further, the offender has not given evidence and therefore the court should approach the matters referred to in the psychologist's report and the testimonials with caution.
Finally, the Crown did not oppose a finding of special circumstances pursuant to s 44(2) of the CSPA.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
In respect of the Milperra offence, I find that there is a clear inference arising from the agreed facts that the offender was cognisant with the overall scope and purpose of the activities involved re-birthing the three vehicles concerned. The first vehicle involved was sold at a profit of $32,000.00, however, there was no evidence of any profit in respect of the the second and third vehicles, other than the benefit of their use. The period of time over which the offending occurred, namely 20 months, is relevant, however, that relevance does diminish in that the evidence does not establish that the re-birthing operation was of such long standing, and there were only a relatively small number of vehicles involved.
Having regard to all of the circumstances of the offending, I do not accept the Crown's submission that the objective seriousness fell within the mid-range for an offence pursuant to s 154G of the Crimes Act. Nor do I accept the offender's submission that it fell towards the lower end of objective seriousness. Whilst below mid-range, the objective seriousness of the offending fell half-way between the low range and mid-range. It still constituted serious criminal conduct, whereby two of the three vehicles involved were stolen, and driven on public roads, thereby placing the users of them, and all other road users, at risk. The offender's role, however, was limited in respect of the purchase of the first vehicle and there is no evidence that he was personally involved in the re-birthing process in respect of the first two vehicles. The third vehicle fell into a different category in that, he claimed ownership of the vehicle and intended to use it as a track car.
The sentence for this offence is aggravated by the circumstance that the offender was serving a s 9 good behaviour Bond imposed by the District Court at Parramatta on 21 June 2013 for a period of 18 months.
The offender accepts that the objective seriousness of the second offence of knowingly deal proceeds of crime, pursuant to s 193B(3) of the Crimes Act 1900, fell within the mid-range of objective seriousness for an offence under that section, and was perhaps towards the higher end of that range. The offending took place over a period of eight weeks and four days, and the offender had leased the workspace for the purpose of carrying out the offending. During that time, the offender and his co-offender dismantled 12 stolen motor vehicles at the premises. A further three stolen motor vehicles were located in the premises by investigating police, and the offender drove the stolen vehicles into the workshop and operated a forklift at those premises. Once the vehicles were dismantled, the offender removed them from the premises and placed them on a flatbed truck, removing them from the site. I accept the Crown's submission that the value of the proceeds of crime was substantial, and I find that the offending fell within the mid-range of objective seriousness for an offence pursuant to s 193B(3) of the Crimes Act, and towards the higher end of that range.
In assessing the objective seriousness of the offending in respect of the Punchbowl offence, I have regard to the fact that Judge Bennett found the objective seriousness of the offending by the co-offender Nabulsi, to be below mid‑range, but not towards the lower end of the range. This is a case where the role of the offender may be taken into account in assessing the objective seriousness of the offending - see Hello v R, supra, at [32]. The offender here was dominant in the organisation and directed and controlled the activities of the co-offenders, Reddy and Eid. He was involved in all aspects of the operation, including payment of those co-offenders, and on-selling of parts taken from the vehicles. The agreed facts included that he was observed to wear gloves, and to deliver the stolen vehicles to the premises and transport the parts therefrom. Given the fact that 18 stolen vehicles were processed and those vehicles had a value in excess of $550,000.00, I find that the offender's conduct fell within the mid-range of objective seriousness for an offence pursuant to s 154G of the Crimes Act. Notwithstanding that there was no evidence of profit generation or profit allocation to him, there was clearly a financial motivation involved in the offending conduct, that is to fund his narcotic and gambling addictions.
In respect of the Milperra and Punchbowl offences, I have had regard to the maximum penalties imposed pursuant to s 154G of the Crimes Act of 14 years imprisonment, and the Standard Non-Parole period proscribed of 4 years imprisonment, as guideposts in the sentencing process. I have also had regard to the maximum penalty for the offence of recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act of 10 years imprisonment as a guidepost in sentencing in respect of that offence.
General deterrence is clearly important in the sentencing process here. A clear message must be sent to like-minded persons in the community that offences involving car re-birthing, which have a significant cost to the individual owners of the stolen vehicles, and members of the community through increased insurance premiums, and increased risk to unfortunate persons who may purchase and use such vehicles by virtue of their non-compliance with the regulatory program, that the courts will deal harshly with offenders by imposing severe penalties as proscribed by Parliament for the offences. The same importance is placed on general deterrence in respect of the offence of recklessly dealing with proceeds of crime.
Here, specific deterrence is also important in the sentencing process. The offender must understand, that his financial wants or needs cannot be met by engaging in criminal conduct.
I find an aggravating factor here in respect of the Milperra offence was that the offender was serving a s 9 Bond to be of good behaviour for 18 months at the time of the offending. Similarly, but of greater significance, is the fact that he was on conditional liberty, namely, bail, in respect of the first offence, when he committed the Punchbowl offence.
I have also had regard to the offender's criminal antecedents. In 2010, he was convicted on charges of common assault and affray, and sentenced to nine months imprisonment on each charge, suspended on entering a bond to be of good behaviour pursuant to s 12 of the CSPA. In 2013, a s 9 Bond for a period of 18 months was imposed in respect of the offence of possess or use a prohibited weapon without permit, as outlined above. I have disregarded a number of minor and traffic charges which were dealt with by way of fine however, and those matters would not otherwise disqualify the offender from leniency in the sentencing process.
I have regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at 477 where the plurality said: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted."
Here, particularly in relation to the Punchbowl offence, the offender falls into the latter category and therefore is disentitled to leniency on the basis of his criminal record.
I find that the following aggravating factors are to be taken into account on sentence: 1. Each of the three offences were committed in company, pursuant to s 21A(2)(e) of the CSPA. In so finding, I have been careful not to double count as an aggravating factor in respect of the Milperra and Punchbowl offences which involved an organised activity. 2. Each of the offences involved multiple victims or a series of criminal acts pursuant to s 21A(2)(m). 3. That in respect of the offence of knowingly deal with proceeds of crime, I find that the offence was part of a planned or organised criminal activity pursuant to s 21A(2)(n), and that it was committed for financial gain pursuant to s 21A(2)(o).
I further accept the Crown's submission that the Punchbowl offence reflects an escalation in offending, relying on Isaako v R and Tan v R, supra. The Punchbowl offence was far more serious in terms of the number of vehicles involved and their value.
The offender is entitled to a utilitarian discount of 25% on head sentence for his early plea of guilty. It is also not in issue that I should make a finding of special circumstances here, given his young age, the fact that these offences were borne of his drug, alcohol and gambling addictions, for which he will require ongoing rehabilitation and in particular, relapse prevention rehabilitation. For that reason, the statutory proportion between the non-parole period and head sentence will be varied.
The parity principle applies in respect of the sentencing of the offender for the Punchbowl offence. Sentencing the offender was delayed whilst the remarks on sentence of Judge Bennett in respect of the co-offender Nabulsi on 2 March 2017 became available from the Court Reporting Service. Each of the parties was given the opportunity, once those remarks became available, to make further submissions in relation to the application of the principle of parity.
Recently, in Le v R [2017] NSWCCA 26, the Court of Criminal Appeal set out the following statements of principle per Hoeben CJ at CL (Walton and Latham JJ agreeing) at [35]: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611, per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe v The Queen at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance': (Lowe v The Queen esp. at 610 per Gibbs CJ; at 613 per Mason J; and at 623 per Dawson J.). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302 per Dawson and Gaudron JJ).
Applying those principles in respect of the Punchbowl offence, equal justice requires that the following relevant differences be taken into account, and due allowance made for them in relation to the offender and Nabulsi.
As set out above, the offender's role was similar to that of Nabulsi, but more like that of a principal in the organisation. In so finding, I am mindful of the fact that his Honour Judge Bennett in his remarks said: "I am not in a position to identify the offender as the principal or the organiser of this operation and, indeed, he is charged as a facilitator in accordance with the terms of the provision under which he has been prosecuted. As was suggested in the course of submissions, it might not be possible to identify precisely who among this group led the organisation. The court in each case will be required to consider the individual activities to be assessed within the context of the overall enterprise upon which they were all engaged as joint participants."
I do not accept the submission made on behalf of the offender that his role was less than that of Nabulsi. The offender was himself a facilitator, but having regard to all of the activities he was involved in as set out above, I find that his role was more significant than that of Nabulsi, and well above that of the co-offenders Reddy and Eid. I have also taken into account the following: 1. Another relevant difference was that Nabulsi had asked for a matter to be taken into account on a Form 1, for which he had admitted his guilt. 2. Also relevant were the differences in the criminal antecedents of each offender as set out above. 3. Another significant difference was the fact that the offender was on conditional liberty when he committed the Punchbowl offence.
I am satisfied, pursuant to s 5 of the CSPA that no penalty other than imprisonment is appropriate. This is, however, an appropriate case for an aggregate sentence to be imposed pursuant to s 53A of the CSPA. Before doing so, however, I am required to provide indicative sentences for the three offences, and indicative non-parole periods for the Milperra and Punchbowl offences, which carry a Standard Non‑Parole Period. This facilitates transparency in the sentencing process. I therefore indicate that the indicative sentences I would have imposed are as follows: 1. H 62829984/1 - The Punchbowl offence pursuant to s 154G of the Crimes Act 1900 - 4 years imprisonment with a non-parole period of 2 years. 2. H 62005263/2 - Recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act 1900 - 3 years imprisonment. 3. H 58863612/3 - The Milperra offence, knowingly facilitate organised car re-birthing activity pursuant to s 154G of the Crimes Act 1900 - 3 years imprisonment with a non-parole period of 18 months.
In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." I have had regard to the principles set out above, together with the principles of proportionality and avoidance of double punishment set out in Pearce v R (1998) 194 CLR 610 at [45] - [49]. In arriving at an aggregate sentence, I have also taken into account that the offender is entitled to a utilitarian discount of 25% on sentence in respect of his early pleas of guilty.
I intend to sentence the offender to an aggregate term of imprisonment of 6 years with a non-parole period of 3 years and 3 months. The sentence will commence on 23 February 2016.

Conclusion and orders

I therefore sentence you as follows: 1. You are convicted of the offence H 62829984/1 of knowingly facilitate organised car re-birthing activity pursuant to s 154G of the Crimes Act 1900 (the Punchbowl offence). 2. You are convicted of the offence H 62005263/2 of recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act 1900. 3. You are convicted of the offence H 58863612/3 of knowingly facilitate organised car re-birthing activity pursuant to s 154G of the Crimes Act 1900. 4. You are sentenced to an aggregate sentence pursuant to s 53A of the CSPA. I sentence you to a non-parole period of 3 years and 3 months commencing on 23 February 2016 and terminating on 22 May 2019. 5. I sentence you to a balance of term of 2 years and 9 months commencing on 23 May 2019 and terminating on 22 February 2022. 6. In respect of the call-up for breach of the s 9 Bond, I order pursuant to s 98(2)(a) of the CSPA that no further action be taken.
You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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: 09 June 2017

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (16 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (18)

Cited By (1)