The offender is charged with one offence pursuant to s 154G of the Crimes Act 1900, that he did knowingly facilitate organised car re-birthing activity. The offence occurred between 28 January 2016 and 19 February 2016. The maximum penalty for the offence is 14 years imprisonment. There is a Standard Non-Parole Period of 4 years.
The offender has been in custody since his arrest on 20 February 2016. Also charged in relation to the same course of criminal conduct were three co‑offenders, Ali Nabulsi, Shadi Salameh and Zacharigh Eid. Nabulsi had been sentenced previously 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 imprisonment. Salameh and Eid were subject to the same sentence hearing on 23 March 2017.
[2]
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.
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. The offender and his co-offender Eid, were thereafter observed to dismantle those vehicles by removing the engines, together with drive train components. The body of the vehicle 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 offender and his co-offender Eid. The co-offender, Salameh, was identified delivering both vehicles and food to the premises for the offender and Eid. Salameh was identified as receiving parts removed from the vehicles when dismantled.
R v Shivneil Reddy [2017] NSWDC 75 | Case summary | Zoe
On 11 February 2016, surveillance revealed that three Toyota forklift vehicles, stolen on 7 February 2016, were identified as being in the yard of the premises. On the same day, one of four vehicles that were stolen in the eastern suburbs of Sydney on 9 February 2016, was observed to be dismantled by the offender and Eid. Throughout that day, the offender and Eid were observed to engage in other activities involving dismantling of vehicles at the premises. 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 Salameh.
On 12 February 2016, the offender was observed at the premises taking number plates from a vehicle known to be stolen on 11 February 2016. He was also observed to remove a case of bottled water from the boot of the vehicle. Later that day, three further stolen vehicles were seen to arrive at the premises. The following day, the offender was observed to remove number plates from one of those vehicles which he and his co-offender Eid, then commenced to dismantle. Another vehicle was dismantled by them later that day. Once the engine and drive trains were removed from vehicles, the body of each vehicle was moved to another part of the premises. The engines were removed from the premises by the co-offender Nabulsi, who was also seen to assist the offender and co-offender Eid, by syphoning petrol from the tanks of the dismantled vehicles.
On 15 February 2016, the offender and co-offender Eid, were observed to dismantle black Toyota vehicles by the same process.
On 16 February 2016, the offender and co-offender Eid, were again observed to dismantle a number of vehicles at the premises. Each of the vehicles was known to be stolen.
On 17 February 2016, the offender and co-offender Eid, were again observed to dismantle stolen vehicles, leaving the premises at 5.30pm in the vehicle of co-offender Nabulsi.
On 18 February 2016, the offender and co-offenders, Eid and Nabulsi, returned to the premises and loaded a number of suspension components into the rear of Nabulsi's van.
On 19 February 2016, a business inspection was conducted at premises of Bankstown Mechanical Repairs situated at Cottam Avenue, Bankstown. The police located in excess of 16 motors removed from vehicles processed at the Bramhall Avenue, Punchbowl premises. The licensee of Bankstown Mechanical Repairs stated that the offender, Nabulsi, had rented a section of the workshop to store the motors. At the time of the business inspection, the offender was observed to be carrying out mechanical work on one of the identified stolen engines. He was then arrested, and following his arrest, participated in an ERISP interview. He admitted to working at the Bramhall Avenue premises. He stated that his responsibility was to clean the yard and place sawdust on any spilt oil. He denied dismantling any motor vehicles. When asked if he had removed any registration plates from any vehicles that entered the yard, he told police that none of the vehicles that entered the yard bore any registration plates. When shown an image of a vehicle in the yard, the offender changed his story and said there might have been as many as 10 vehicles that came into the yard with registration plates attached.
During the interview, the offender stated that the co-offender, Salameh, gave instructions to Eid and himself about the work to be carried out at the premises. The offender told police that all the vehicles that came into the yard had keys in the ignition and were able to be driven. The offender stated that he was never there when the vehicles arrived at the premises, or when they were taken away.
Over the 14 day period the property was monitored, the police observed 16 vehicles being processed at the premises, with an estimated value in excess of $550,000.00. By removing the engines from the vehicles, the vehicles were destroyed, rendering them unusable.
Exhibit A also contained the criminal antecedents of the offender. That record contained only traffic offences in 2014 and 2016. On 24 February 2016 he was sentenced to 3 months imprisonment for a second offence of driving whilst disqualified.
Exhibit B comprised the agreed facts in respect of the co-offender Nabulsi, together with his criminal record.
Exhibit C was a Pre-Sentence Report under the hand of Ms Jodie Murphy dated 16 March 2017. That report set out the offender's family/social circumstances. The offender had no contact with his father shortly after he was born, and from age five, was raised by relatives in New Zealand, and then in Fiji. At age nine he moved to Australia to live with an aunt, who thereafter cared for him. He completed Year 12 at Lurnea High School, and then commenced a plumbing apprenticeship which he did not complete. He then worked for three years in fast food outlets and worked for a time as a cabinet maker.
The offender indicated to the author of the report that he had engaged in regular binge drinking and cocaine use. He had stopped that conduct upon his entry to custody, and had also recently converted to Islam. The offender was said to become involved in the car re-birthing operation, owing to a need for money. He had lost his licence, which meant that he lost his cabinet making job. He was also gambling on average twice a week.
Under the heading "Attitude to Offending", the offender indicated that he was unaware of the seriousness of his actions, telling the author that he did not think he would get into trouble, as he was there to work and to get paid. The offender did, however, demonstrate some insight into the broader repercussions of his actions and indicated that he was willing to comply with any intervention considered necessary. He was assessed as a low/medium risk of re-offending, and his identified criminogenic needs were:
Financial
Leisure/recreation
Companions
Alcohol/drug probems.
The offender indicated upon his eventual release, he plans to re-engage with legitimate employment, and to comply with any intervention necessary. It was considered that he would benefit from a period of supervision by Community Corrections and that case management strategies would include:
Referral for psychological assessment
Referral for gambling assistance
AOD intervention
Finally, the offender was assessed as suitable for a Community Service Order.
[3]
The offender's evidence
The offender tendered a letter from Mrs Shalini Lata, his aunt. That letter recorded the offender's family history. His father left the family when the offender was aged two years, and the offender was fostered to a family in New Zealand, but poorly treated. In 2006, he came to Australia to live with his aunt, who looked after him until 19 February 2016. He had a part-time job at McDonalds restaurant, and his mother became unwell in New Zealand. Mrs Lata wrote that the offender had planned to move to New Zealand to look after his mother, but needed money to do so. It was this financial need which lured him to what she called, "this wreckers", where he was promised large sums of money. He took on the job not knowing that the premises were under police surveillance.
[4]
Submissions on behalf of the offender
Learned Counsel for the offender described the offender's background as that of a "challenged youth". He was born on 18 March 1997, and was 19 years at the time of the offending, and is now age 20. He had been in custody since 20 February 2016.
The offender had entered a plea of guilty at a very early stage in the proceedings, and was therefore entitled to a 25% discount on sentence. He had no significant criminal history, with only minor traffic matters, and was therefore otherwise a young man of good character, which should be taken into account.
It was submitted that whilst the offender was to be paid for his work, it was by way of wages, and therefore there was no financial gain to him in the enterprise. He had no explicit knowledge of the enterprise and was not responsible for either acquiring the stolen vehicles or disposing of the motors and other parts. The offender had shown remorse for his actions and had good prospects of rehabilitation. Prior to this offence, he had secure employment and it was his desire on release to return to gainful employment.
It was submitted that it was common ground here that the objective seriousness of the offending was towards the lower level, given his lowly place in the hierarchy. He was taking instructions with Eid from Nabulsi. Further, the offending involved a limited time period of less than three weeks. His role was limited to removing parts from the vehicles once they were delivered to the premises. There was no other offending conduct.
The offender had completed high school and wanted to return to work. There were special circumstances here, given that it was his first time in custody and his youth. There were also positive aspects reported in the Pre-Sentence Report.
Counsel submitted that the principle of parity was also important. Nabulsi, who had a much higher level of involvement, had been sentenced with a non‑parole period of 1 year and 9 months.
It was submitted that there was a parallel here with the judgment in Hello v R [2010] NSWCCA 311, where the number of vehicles stolen was 18. Here, there were 16 vehicles involved, however, that was where the parallel ended. The subjective characteristics of the offender here were very different from each of the offenders in Hello. Also, in that case, the offending had taken place over a period of four months, and the offenders were receiving orders for re-birthed vehicles. Therefore, the only common factor was the number of vehicles involved. It was submitted that the court had to take into account, in determining the objective seriousness of the offending, all of the circumstances, and given the very specific role undertaken by the offender here, on instructions from others, the objective seriousness was below the mid‑range.
It was also submitted that there was no aggravating factor pursuant to s 21A(2)(e) that the offence was committed in company, because this was an organised activity and he was part of that organisation. It was conceded, however, that there were multiple victims, which was an aggravating factor pursuant to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
[5]
The Crown submissions
In its written outline of submissions, the Crown submitted that the maximum penalty of 14 years imprisonment for this offence reflects the seriousness of the offence and serves as a yard stick, or as a basis for comparison between the worst possible case and the case now before the court. The court would have regard to the maximum penalty, and where, in the range of conduct covered by the statutory offence, the particular criminal conduct of the offender falls. The offence also carried a Standard Non-Parole Period of 4 years imprisonment.
The Crown submitted that it was necessary to identify where on the scale of objective seriousness the offence lies, relying on R v Hamieh [2010] NSWCCA 189.
It was submitted that the objective seriousness of the offending here was mid-range even though his role was within the lower end of that range. There were 16 vehicles involved at a value in excess of $550,000.00. They were the factors which meant that the offending fell within the mid-range.
The Crown submitted that the following relevant sentencing considerations had been identified by the Court of Criminal Appeal in R v Hamieh, supra:
"(1) General deterrence is a factor that must be given weight.
(2) The creation of a new offence with a maximum penalty greater than previously, applied to offences of this type require that sentences reflect the legislatures' purpose and concerns, resulting in higher sentences.
(3) Section 154G related to each step in the process of car re-birthing.
(4) Every step in the re-birthing industry is necessary and interrelated.
(5) Section 154G encompasses a wide range of criminal activity."
A court's task is to punish an offender for the actual offending conduct engaged in, relying on Ibbs v R (1987) 163 CLR 447 at 542.
The Crown submitted that the legislature had provided that questions of hierarchial structure are irrelevant to proof of the organised nature of the activity. The provision recognised 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 focus should be on what the offender actually did in facilitating the operations.
The Crown also relied on R v Tannous [2012] NSWCCA 243, in which the court recognised that assessment of degrees of involvement in car re‑birthing is a difficult task, but also noted:
"(a) Involvement frequently permits the inference that those involved are cognisant of the overall scope and purpose of the activities, even if their own role was limited to a particular stage of the process.
(b) Despite profit from the activities being relevant, it may well be that an understanding of how profits were ultimately shared will not be forthcoming.
(c) The time of which the activities were concluded is a relevant consideration."
The Crown conceded that the offender was entitled to a full discount for his plea of guilty.
The Crown submitted that there were aggravating factors, namely, that the offence was committed in company pursuant to s 21A(2)(e), and that the offence involved multiple victims pursuant to s 21A(2)(m), of the CSPA.
In oral submissions, the Crown conceded that the offender would benefit from an extended period of supervision.
[6]
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."
Section 154G of the Crimes Act, is drafted in very wide terms, and is intended to strike at every stage of the car re-birthing process - see Hello v R, supra at [13]. Although the section encompasses a wide range of criminal activity, a person guilty of an offence under s 154G is to be punished for the actual offending conduct that he engaged in - see R v Hamieh, supra. Thus, although the Crown submitted that the offender's conduct was within the mid-range of offending pursuant to the section, that was based on the bare facts that there were 16 vehicles involved, and that those vehicles had an estimated value of over $550,000.00. However, in assessing the objective seriousness of the offending, the court must have regard to all of the circumstances of the offending, particularly where an offence is defined to include any of several categories of conduct.
In Hello v R, supra, Latham J (with whom Rothman and Price JJ agreed), said at [32]:
"In circumstances where the offence under s 154G is committed by a number of offenders who are directed and controlled in their activities by a dominant offender exercising authority over them, questions of role and position in the hierarchy may become relevant for the purpose of sentence, but this is not the case."
While it was not the case in Hello, the fact that the co-offenders Nabulsi and Salameh were directing the offender's activities, is relevant here.
Having regard to all of the facts of the offending conduct here, including the fact that 16 vehicles were involved, having a value in excess of $550,000.00, and the role of the offender who took instructions from others as to his part in the dismantling of those vehicles, I find that the objective seriousness of his offending was below mid-range. It did, however, still constitute serious offending, given that he must have known that the vehicles had been stolen and that he was playing an active role in the re-birthing of those vehicles, and I therefore find the objective seriousness of the offending lies half-way between the low and mid-range of offending pursuant to s 154G.
I have had regard to the maximum penalty of 14 years imprisonment and the Standard Non-Parole Period proscribed by Parliament of 4 years, as guideposts in the sentencing process. The maximum penalty reflects the penalty for the worst class of offence.
General deterrence is also important in the sentencing process here in that a clear message must be sent to like-minded persons in the community that criminal activity involving re-birthing of stolen motor vehicles will be severely dealt with by the courts. It is a crime which affects the victims, namely, the owners of those stolen motor vehicles, as well as the whole of the community through increased insurance premiums. It also affects the ultimate purchasers of such vehicles, which may be re-assembled in a way so as not to comply with the regulatory scheme for motor vehicles sold in the jurisdiction.
Specific deterrence is also relevant in the circumstances that the offender found himself in must not be repeated, namely, that financial needs cannot be met through criminal activity.
I find that an aggravating factor here is that the offence was committed in company, pursuant to s 21A(2)(e). However, given that s 154G(1) is predicated on the activity being carried out on an organised basis, I have been careful not to double count this aggravating factor in sentence. I also find that an aggravating factor was that there were multiple victims of the offence pursuant to s 21A(2)(m).
The offender is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty. I accept that he has expressed remorse for his offending, and that he had been disadvantaged by his dysfunctional upbringing, and that he is entitled to have his good character taken into account. I accept that his offending was borne of his perceived financial motive to earn money to go to New Zealand to care for his sick mother.
I find that there are special circumstances made out here pursuant to s 44(2) of the CSPA. The offender is still very young, and this has been his first time in custody. He will require an extended period of time under supervision and has made some progress towards his own rehabilitation. I accept the recommendations by the Community Corrections officer, that he will require referral for psychological assessment, referral for gambling assistance, and alcohol and drug abuse intervention. He has expressed a desire to re-engage with legitimate employment and to comply with whatever intervention is deemed necessary by Community Corrections. There will therefore be a variation of the usual ratio between his non-parole period and head sentence.
I am mindful of applying principles of parity to this offender and his co‑offenders Nabulsi and Eid. The application of that principle means that neither the offender, nor his co-offenders should feel a justifiable sense of grievance, having regard to the penalties imposed on others for similar offending conduct. This is based on equal justice that requires like to be treated alike but that, if there are relevant differences, due allowance should be made for them. I accept that the co-offender Nabulsi had a much higher level of involvement and role in the organised re-birthing activity, that he was much older than the offender, and had a criminal record. Those matters warrant a sentence well below that imposed on Nabulsi.
After applying a discount of 25%, I intend to sentence the offender to a term of imprisonment of 2 years and 3 months, with a non-parole period of 1 year and 2 months, to date from 20 February 2016.
[7]
Orders
I therefore make the following orders:
1. You are convicted of the offence of knowingly facilitate organised car re‑birthing activity pursuant to s 154G of the Crimes Act 1900.
2. I sentence you to a term of imprisonment, with a non-parole period of 1 year and 2 months, to commence on 20 February 2016, and to terminate on 19 April 2017.
3. I sentence you a balance of term of 1 year and 1 month, commencing on 20 April 2017, and terminating on 19 May 2018. The total term will be 2 years and 3 months.
4. Your parole eligibility date will be 19 May 2017.
[8]
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Decision last updated: 10 April 2017