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 spent five days in custody following his arrest on 10 March 2016. He has been on bail since 15 March 2016. Also charged in relation to the same course of criminal conduct were three co-offenders, Ali Nabulsi, Shadi Salameh, and Shivneil Reddy. 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 Reddy 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, Reddy, were thereafter 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 offender and his co-offender Reddy. The co-offender, Salameh, was identified to deliver both vehicles and food to the premises for the offender and Reddy.
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 four vehicles that were stolen in the eastern suburbs of Sydney, was observed to be dismantled by the offender and Reddy. Throughout that day, the offender and Reddy 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. 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 Reddy, 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 Reddy, by syphoning petrol from the tanks of the dismantled vehicles.
At 2.31pm on 12 February 2006, Salameh was observed to reverse a white Toyota Landcruiser into the compound at Bramhall Avenue. The offender immediately removed the front number plate from that vehicle. Later that afternoon, during lawfully intercepted telephone conversations, Salameh invited the offender to come to his house so that Salameh could give him "some money and money for his mate as well".
On 13 February 2016, during a lawfully intercepted telephone conversation, the offender said to the co-offender Salameh, that "I'm at the shop and that only two loads have been done". The loads referred to the removal of vehicle bodies from the premises and the disposal of those bodies at Sydney Metal Traders, which was confirmed by both physical and electronic surveillance. It is clear that the co-offenders referred to the premises at Bramhall Avenue, Punchbowl, as "the shop". On 13 February 2016, the offender attended those premises and permitted access to the yard to a truck registered to Sydney Metal Traders of Greenacre. The offender assisted the driver of that vehicle to load the bodies of four vehicles onto the rear of that truck. The truck then returned to Sydney Metal Traders where the bodies were left and destroyed. It returned to Bramhall Avenue, Punchbowl, where the offender assisted in the loading of three further vehicles onto the rear of the truck, which then left.
On 15 February 2016, the offender and co-offender Reddy, were observed to dismantle a number of black Toyota vehicles by the same process at the premises. The motors were removed and the bodies of the vehicles were damaged by the offender. The actions of the offender were consistent with manufacturing damage to the vehicle, consistent with the vehicles being involved in a collision. Later, at 1.14pm on 15 February 2016, during a lawfully intercepted telephone conversation, the co-offender Salameh said to the offender, "Come out with the part in one minute. No come out now, in 30 seconds". The offender was observed to carry window glass to the front of the premises. A short time later, with the co-offender Salameh, the offender was observed to walk back into the premises towards a Toyota Landcruiser vehicle positioned in the dismantling area of those premises. The co‑offender Salameh was observed to point to the front of that vehicle and appear to give directions to the offender as to the dismantling work to be carried out by the offender and his co-offender Reddy. The co-offender Salameh remained at the premises for a short period of time before walking to the front of the premises with the offender.
On 16 February 2016, the offender and co-offender Reddy, 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 Reddy, 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, Reddy and Nabulsi, returned to the premises and loaded a number of suspension components into the rear of Nabulsi's van. The offender continued to do duties in the yard.
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 co-offender Reddy 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. The offender returned to the premises of Bankstown Mechanical Repairs at the time of the police attendance for the business inspection. He observed the co-offender Reddy being arrested and fled the location in the motor vehicle of co-offender Nabulsi, which was located abandoned in a nearby street. In a lawfully intercepted telephone conversation between the offender and his co-offender Salameh, the offender stated, "We are fucked, the cops are all over us". In subsequent phone calls between the two men, the offender arranged for his co-offender Salameh to collect him from a nearby street.
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.
Shortly before 6am on 10 March 2016, the offender attended Liverpool Police Station and was placed under arrest. He declined to be interviewed.
Part of the police investigation showed that on 15 February 2016, during lawfully intercepted telephone conversations between the offender and his co‑offender Salameh, the following conversation took place:
"Salameh: Corolla headlights. Are they there, 2?
Offender: Yeah I got 2 yeah."
Salameh: Yallah I'm coming to pick them up."
Surveillance footage of the premises at Bramhall Avenue, Punchbowl, identified the offender at the location at the time that call was made. A short time later, the offender obtained two headlight assemblies from within a storage container at those premises, and walked the headlight assemblies to the front of the premises. He returned carrying a white plastic bag. He passed an item from the bag to his co-offender Reddy, and removed his gloves and commenced to eat. Telephone records of the co-offender Salameh indicated that at that time he had been in the vicinity of the Croatian Club, Punchbowl, which was situated within 100 metres of the premises at Bramhall Avenue.
Exhibit A also contained the criminal antecedents of the offender. That revealed subsequent offences by the offender as follows:
25 July 2016 - convicted of being responsible person/custodian not disclose driver's details and fined $1,500
6 February 2017 - convicted of possess or use prohibited weapon without permit - s 9 Bond 2 years
6 February 2017 - convicted of possess prohibited drug - s 9 Bond for 2 years
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 Fiona Savage dated 22 March 2017. That report set out the offender's family/social history. He had first come into contact with Community Corrections on 6 February 2017 in respect of the subsequent offending for which he received the two s 9 good behaviour bonds. His response to supervision since then had been considered satisfactory. The offender is 20 years of age, with no dependents and resides with his mother in Green Valley. He is currently working full time at an auto parts car yard in Milperra. He was described by his employer as hardworking, reliable, and someone who worked well with others.
The offender had started smoking cannabis whilst at school. He commenced using cocaine in 2015 and admitted spending approximately $1,000 per day on the substance until March 2016. He then commenced smoking methylamphetamine on a daily basis from December 2016, but denied further drug abuse since January 2017. In the months leading up to the offence, gambling was an issue for the offender. At times he would spent between $2,000 and $3,000, but denied gambling since January 2016. He attributed his offending behaviour to his use of illicit substances and an addiction to gambling. Prior to the offending, his relationship with his father had become strained, due to his lack of employment and he had subsequently left the family home after a disagreement with his father. It was around this time that his drug use became problematic. The offender was assessed as a low/medium risk of re-offending. His identified criminogenic needs are:
Financial
Companions
Alcohol/drug problems
Attitude/orientation
The offender was co-operative throughout the assessment and the author regarded it as encouraging that he had gained full time employment, and his supervisor was willing to co-operate with Community Corrections. He was assessed as being suitable for a Community Service Order.
[3]
The offender's evidence
The offender tendered a letter from Salere Pty Limited dated 24 May 2016 confirming his employment as a casual fruit packer, and annexing a payslip for the fortnight ending 2 May 2016.
[4]
Submissions on behalf of the offender
The offender's solicitor submitted that he had strong family support. He had provided his mother with transport to hospital and doctors since being granted bail, and obtained full time employment whilst reporting daily to the police. He had also been subject to a strict overnight curfew which he had not breached. He had shown commitment to his family and community by those matters.
It was submitted that the offender comprehended the full seriousness of his offending. However, the court would have regard to the following subjective matters. First, he had entered a plea of guilty at the earliest opportunity, and thereby was entitled to 25% utilitarian discount on sentence. This was a matter which required condign punishment and the s 5 threshold had been crossed. However, he was 19 years at the time of the offending, which took place over a short discrete period of time of less than three weeks. It took place in the company of others, however, no greater reward was to come to him from the criminal conduct. He was left impecunious.
He presently paid $200 per week board from his wages and reported to Community Corrections for supervision. According to the Pre-Sentence Report he had performed satisfactorily and was a low to medium risk of re‑offending. It was submitted on his behalf that the court should consider a suspended sentence pursuant to s 12, or an Intensive Correction Order pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). He had good prospects of rehabilitation, was in stable residential arrangements and work. He had shown contrition and remorse for his offending. In terms of the objective seriousness of the offending, he, together with his co-offender Reddy, were at the lower end of the hierarchy. Further, in applying principles of parity, Nabulsi, who had been sentenced on 2 March 2017 to a head sentence of 3 years and 6 months, with a non-parole period of 1 year and 9 months, had a criminal history of offences of significant dishonesty.
It was submitted that the offender was entitled to an order for special circumstances, given his youthful age at the time of the offending and now; it would be his first full time custodial sentence, he had complied with Community Corrections during his period of supervision on bail, and had the support of his family.
[5]
The Crown submissions
The Crown submitted that the maximum penalty of 14 years imprisonment for an offence pursuant to s 154G(1) of knowingly facilitate organised car re‑birthing activity, reflected the seriousness of the offence and served as yard stick, or as a basis for comparison between the worst possible case and the case now before the court. The offence also carried a standard Non-Parole period of 4 years imprisonment.
The Crown submitted that it was important to assess the objective seriousness of the offending for car re-birthing offences. That involved assessing where on the scale of objective seriousness an offence lay, relying on R v Hamieh [2010] NSWCCA 189.
The Crown submitted that general deterrence was a factor to be given weight here, to deter involvement in car re-birthing and to send a clear message to those thinking of being involved in re-birthing activity, that the punishment will far outweigh any illegal benefits (R v Hamieh, supra at [48]).
The Crown submitted that s 154G encompassed a wide range of criminal activity, and the court's task was to punish an offender for the actual offending conduct engaged in, relying on Ibbs v R (1987) 163 CLR 447 at 452. It was submitted that the legislature had provided that questions of hierarchial structure are irrelevant to proof of the 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 focus here should be on what the offender actually did, rather than on whether the offender was a principal or a minion.
The Crown submitted that in R v Tannous [2012] NSWCCA 243, the Court of Criminal Appeal recognised that assessment of degrees of involvement in a car re-birthing is a difficult task. The court noted the following:
"(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 in 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 over which the activities were conducted is a relevant consideration."
Here, the Crown noted that the facts established that the offender's involvement spanned from 28 January to 19 February 2016. During that period, 16 stolen vehicles, with an estimated value in excess of $550,000.00 were processed in the car re-birthing operation. The offender was involved in working with the stolen vehicles at both Bramhall Avenue, Punchbowl, and also premises at Cottam Avenue, Bankstown.
The offender was involved in the dismantling of stolen vehicles and removing engine and drive train components. He was also involved in damaging the vehicles and placing them in storage. That involved him being involved in moving the vehicles within the premises and removing items found in the stolen vehicles. He was also involved in the syphoning off of petrol from the petrol tanks of the stolen vehicles. The offender acted at the direction of the co-offender Nabulsi, and also the co-offender Salameh. It was submitted, on the basis of the established facts that the objective seriousness of the offending was within the mid-range of objective seriousness.
The Crown submitted that the offender was entitled to credit for his plea of guilty. Further, that aggravating factors were that the offence was committed in company, pursuant to s 21A(2)(e), and that the offences involved multiple victims, pursuant to s 21A(2)(m) of the CSPA.
Also relevant to the subjective factors was that the offender had a record of convictions for post-offending conduct, being placed on two s 9 Bonds on 6 February 2017, for the offences of possess/use prohibited weapon without permit, and possess prohibited drug. His prospects of rehabilitation must be assessed in the light of those two recent offences, relying on Couch-Clark v R [2010] NSWCCA 228, and Janceski v R [2005] NSWCCA 288 at [38].
The Crown noted that the offender had conceded that the threshold in s 5 had been crossed.
[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 [2010] NSWCCA 189. Thus, although the Crown submitted that the offender's conduct was within the mid-range of offending pursuant to that 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 circumstances of the offending here, I find that the objective seriousness of the offending of the offender lay below the mid‑range of offending for an offence pursuant to s 154G. The offender clearly was under instructions from both Nabulsi and Salameh in carrying out his role in the re-birthing activity. He was being paid for his labour only. I therefore find that the objective seriousness of the offending lay half-way between the lower end of the range and the mid-range of objective seriousness. It still, however, constituted serious criminal conduct and the offender was clearly cognisant of the overall scope and purpose of the re‑birthing activities. Also, the offending conduct took place over a relatively short period of time of less than three weeks.
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 here. Whilst it may be inferred that the offending conduct of this offender was borne of his drug use and gambling addiction, specific deterrence is important to sheet home that criminal activity to fund illicit drugs and gambling will be harshly dealt with.
The offender is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty being entered at the earliest opportunity. I accept that he has some insight into his offending, and that he has responded reasonably to supervision during his bail, which has included a curfew and reporting conditions. He is entitled to have his good character taken into account, however, his subsequent offending does not entitle him to any leniency.
I find that there were aggravating circumstances here, in that the offending was committed in company pursuant to s 21A(2)(e). As the offence concerned an organised activity, it clearly involves some organisation and therefore the involvement of others. For that reason, I have been careful not to double count this circumstance of aggravation. I also find that it was an aggravating factor that there were multiple victims pursuant to s 21A(2)(m) of the CSPA.
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 will be his first time in custody. He will require an extended period of time under supervision to enable him to progress his rehabilitation, to prevent his relapse into drug abuse and gambling, and to return to legitimate employment. 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 Reddy. 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. However, the offender's level of involvement and role was almost identical with that of his co‑offender Reddy, if not greater. Although there are different subjective factors relevant to sentencing both, this warrants a sentence of similar severity to that of Reddy.
For that reason, 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 2 April 2017, to take into account the five days he has already spent in custody. I am not persuaded that that term should be suspended in all of the circumstances pursuant to s 12 of the CSPA.
[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 2 April 2017, and to terminate on 1 June 2018.
3. I sentence you to a balance of 1 year and 1 month imprisonment, commencing on 2 June 2018 and terminating on 1 July 2019. The total term will be 2 years and 3 months.
4. Your parole eligibility date will be 1 June 2018.
[8]
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Decision last updated: 10 April 2017