Assafiri v R
[2007] NSWCCA 159
•19 June 2007
New South Wales
Court of Criminal Appeal
CITATION: Assafiri v R [2007] NSWCCA 159 HEARING DATE(S): 08/06/2007
JUDGMENT DATE:
19 June 2007JUDGMENT OF: Basten JA at 1; Grove J at 2; Howie J at 3 DECISION: 1. Application for leave is granted and the appeal allowed. 2. The sentences imposed in the District Court are quashed and in lieu the applicant is sentenced as follows: Count 1 - Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007. Count 2 - (taking into account the matters under s 16BA) Imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009. Count 3 - Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008. Count 4 - Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007. The sentences for related matters are confirmed but are to date from 19 September 2007. The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on 19 February 2008. CATCHWORDS: Criminal Law - Sentence - Federal offences - application of s 16BA of the Crimes Act (Cth) - Assistance to authorities. LEGISLATION CITED: Financial Transactions Reports Act 1988 (Cth - ss 15, 29(4)(b)
Criminal Code (Cth) 1995 - s 400.9(1)
Crimes Act (Cth) 1914 - ss 16BA, 16E(1)
Criminal Procedure Act 1986 (Cth) - s 166CASES CITED: R v Newman & Simpson (2004) A Crim R 361
R v Olbrich (1999) 199 CLR 270
R v El Hani [2004] NSWCCA 162PARTIES: Wassim Saad Assafiri v Regina FILE NUMBER(S): CCA 2007/1020 COUNSEL: W. Abraham SC - Crown
M. Thangaraj/D. Sulan - ApplicantSOLICITORS: S. Kavanagh - Crown
Lawyerscorp Pty Ltd - ApplicantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0312
LOWER COURT JUDICIAL OFFICER: Boulton ADCJ LOWER COURT DATE OF DECISION: 17/09/2006
2007/1020
TUESDAY 19 JUNE 2007BASTEN JA
GROVE J
HOWIE J
1 BASTEN JA: I agree with the orders proposed by Howie J, for the reasons he gives.
2 GROVE J: I agree with Howie J.
3 HOWIE J: This is an application for leave to appeal against sentences imposed in the District Court for four offences in breach of Federal Laws. The applicant had pleaded guilty in the Local Court and was committed for sentence. For a reason that is neither apparent nor relevant he was arraigned on an indictment for the four offences and pleaded guilty to each. The offences comprised three counts of making a false statement contrary to s 29(4)(b) of the Financial Transactions Reports Act 1988 (Cth) (the “money laundering offences”) and one count of possession of property reasonably suspected of being proceeds of crime contrary to s 400.9(1) of the Criminal Code (Cth) (“the goods in custody offence”). The money laundering offences relevantly carried a maximum penalty of imprisonment for 5 years and the goods in custody offence a maximum penalty of imprisonment for 2 years.
4 The applicant also asked the sentencing judge, Acting Judge Boulton (the Judge) to take into account under the provisions of s 16BA of the Crimes Act (Cth) 19 further offences of money laundering. There was also before the Judge a schedule of “related offences” in accordance with s 166 of the Criminal Procedure Act 1986 (NSW) to which the applicant also pleaded guilty. These were a mixture of Federal and State offences related to the use of false identification or false statements made by the applicant in order to perpetrate the money laundering offences.
5 On 27 September 2006 the Judge sentenced the applicant. He intended that there would be an overall sentence of imprisonment for 3 years and ordered the applicant to be released on a recognizance release order after serving 1 year 11 months and 23 days. The Judge actually sentenced the applicant to a term of imprisonment of 2 years on the first count, 3 years on counts 2 and 3, those sentences all to be concurrent, and a sentence of 9 months imprisonment for count 4 cumulative to the sentences on the first three counts. For all the related offences he sentenced the applicant to imprisonment for 6 months except for two matters in respect of which the applicant was sentenced to 2 months on one and 9 months on the other. Those sentences were all concurrent between themselves and with the sentences for the first three counts on the indictment. The result was an overall sentence of 3 years and 9 months.
6 Having imposed those sentences, the Judge then purported to discount them by 20 per cent for the pleas of guilty resulting in an overall term of 3 years. The Judge never in fact calculated the sentences for the particular offences after applying the discount nor did he vacate the sentences he had imposed before discounting them. Therefore, at least technically, the sentences being served by the applicant are those that were actually imposed upon him prior to the purported discount. The Court has a copy of the sentencing orders signed by the Judge. They are in the same terms as he pronounced them. Therefore there is at least an inconsistency in the orders and on its face the applicant’s total sentence is 3 years and 9 months and the Judge had no power to fix a recognizance release order.
7 It is obvious that a sentence should be imposed after the appropriate discounts are applied and not before. In the present case it impossible to know with certainty what sentence the applicant is actually serving for any offence. For example, what is the Judge’s calculation of 20 per cent of 9 months for the fourth count? In the absence of any determination by the Judge of the discounted sentence, whose function is it to decide what the term of that sentence is to be? Presumably the warrants issued show the sentences as imposed by the Judge but they are not the sentences he intended to impose. The Crown brought this problem to the attention of the Judge sometime after sentence but at the time of the hearing in this Court no action had been taken to have the sentences corrected. Whatever be the result of the grounds of appeal relied upon, this Court will have to resentence the applicant.
8 A further difficulty with the sentences is that it appears that the Judge took into account the matters on the form prescribed pursuant to s 16BA when sentencing for all offences. The Judge does not say that he did so but neither does he indicate on which of the offences he took the matters into account. This is perhaps not surprising because the form signed by the prosecutor and the applicant referred to each of the four charges and is in terms requesting the Judge to take into account the matters on the form when sentencing for all offences for which the applicant was before the court.
9 Although the terms of s 16BA might suggest that matters can be taken into account when sentencing for more than one Federal offence, it cannot have been the intention of the legislature that more than one sentence could be increased by taking into account the same offences. Obviously that would result in double counting the matters being taken into account. This might not be of practical significance when the sentences are being served concurrently. But it would clearly be unfair to do so when some or all of the sentences are being served cumulatively as was the case here. Senior Counsel for the Crown accepted that, despite the terms of the section, the form pursuant to s 16BA should refer to only one offence, being that to which the matters taken into account should apply. The parties asked this Court to take the matters into account on the most serious offence being the second count.
10 Neither of the above errors in the sentencing of the applicant was relied upon as grounds of appeal. Nor were they referred to in the written submissions of either party. Although the Crown accepted that these errors had occurred, it submitted that no lesser sentence was warranted. The applicant argued that, even without these errors, the sentences were excessive because the Judge over-estimated the criminality of the applicant and refused to give him a discount for proffered assistance. It was submitted that the applicant should receive the benefit of an order that the sentences imposed be served by way of periodic detention.
11 It should be noted that the representative of the Commonwealth Crown before the Judge submitted that a sentence for a Federal offence could not be backdated where the offender was not in custody. There is nothing in the provisions of the Crimes Act (Cth) to justify that submission. The normal and preferred practice in sentencing for State matters, where an offender has been in custody for some time before being released to bail, is to backdate the sentence for a period equal to the period served in custody notwithstanding that the offender may have been on bail for the period up until sentence is pronounced: see R v Newman & Simpson (2004) 145 A Crim R 361. This practice should be adopted pursuant to s 16E(1) of the Crimes Act (Cth) that provides that the law of this State relating to the commencement of sentences applies to a person sentenced for a Federal offence.
12 The facts reveal that the applicant was involved in a significant way in the laundering of money so that it could be sent overseas. There were two distinct sets of transactions involved. The first occurred in November and December 2004. The second occurred in May 2005. Police arrested the applicant at a bank intending to transfer $200,000. The amount then in his possession and money in one of the accounts he operated, totalling $290,020, formed the goods in custody offence. As a result of his activities $9,550 was transferred to Indonesia on 25 November 2004. This comprised the first count on the indictment. On 19 May 2005 two sums, $149,970 and $125,975, were transferred to Lebanon. These amounts gave rise to the second and third counts of money laundering.
13 In order to carry out this activity the applicant used two false identities in which he purchased two companies. He opened five bank accounts, one in the name of one of his false identities and two in the name of each of the companies. In total the applicant transferred $465,942 to banks in Lebanon and Indonesia and the applicant had intended to transfer a further $200,000 to a bank account in Lebanon. The sums transferred were generally in the amount of $9,500 to avoid the compulsory notification limit under s 15 of the Financial Transactions Reports Act 1988 (Cth).
14 The subjective matters relevant to the applicant were to be found in a pre-sentence report and a report from a psychiatrist. These revealed that the applicant was aged 29 years with no prior criminal record. He comes from Lebanon where he married before migrating to this country with his wife and daughter. The applicant had difficulty obtaining work or support and apparently this was the reason why he became involved in these offences. From the proceeds of these offences he supported his family and three orphans in Lebanon. Apparently he told the probation officer that, as well as enabling him to commit these offences, the principal provided him with false identification by which he purchased goods for the family including furniture. The applicant had been working at some time as a truck driver. There was little in the psychiatric report of relevance apart from the fact that the applicant had been suffering from an adjustment disorder since his motor vehicle was fired upon, an incident to which reference is made below. There were a number of character references before the Judge.
15 It was accepted at the sentencing hearing that the applicant did not own the money he transferred. The police officer giving evidence before the Judge conceded that a person named Frank from Melbourne owned the money and that the applicant was acting on his behalf. The applicant told police that he had received the documents relating to his false identities from the person who provided the funds. He said that whenever he attended the bank, Frank was with him waiting in a parked motor vehicle. The applicant complains that the Judge did not take into account sufficiently, or at all, the applicant’s subsidiary role and sentenced him as if he were a principal. This, it is submitted, was why the sentence imposed was so close to the maximum penalty for the offence notwithstanding a discount of 20 per cent for the pleas.
16 There is little in the remarks on sentence that identifies either directly or indirectly the position of the applicant in the criminal organisation behind the scheme to transfer the money from Australia. But as the Crown submitted before this Court, the Judge sentenced the applicant on the basis of what he did rather than identifying his role or position as against the other person or persons involved; see R v Olbrich (1999) 199 CLR 270. Yet it is relevant to identify whether the applicant is the principal in the course of criminal conduct in which he engaged. Clearly if the owner, or owners, of the money were before the Court it would generally be expected that they would face a heavier sentence because the offences were being committed at their behest and for their advantage.
17 At the hearing before this Court some reference was made by analogy to drug importation offences. On that analogy the applicant would be more than a courier but less than a principal. Yet his involvement was substantial in both setting up the scheme and carrying it out even if he were working under directions of someone above him. Further the enterprises were not accomplished by a single act of criminality, such as might be the case of a person couriering drugs. This is demonstrated by the number of offences that were before the court, either being taken into account or as related matters. A substantial sentence of full-time imprisonment was required to mark the applicant’s criminal activity over a number of months notwithstanding his previous good character and the other subjective matters that might mitigate the sentence.
18 The manner in which the applicant was sentenced did not, with respect, represent the criminality involved in the various counts or a proper application of the principle of totality. I have difficulty in understanding how the Judge could justify making the sentences for the first three counts concurrent and then cumulate the fourth count. The second, third and fourth counts were all part of the same course of criminality and could have been met by concurrent sentences, particularly if the second count reflected the s 16BA matters. The first count represented a completely separate, although related, course of criminal activity. I do not see how the second and third counts could reflect the additional criminality in the first count even though there was more money actually transferred in the second course of criminal activity.
19 In any event it seems to me that the total criminality involved would be represented by an undiscounted sentence of three years however it is structured. I have taken into account other cases to which the sentencing judge and this Court were referred but they can be distinguished on their facts. Although in some cases the amount of money involved is higher than in the present case, the applicant’s activity and period of criminality was greater.
20 The Judge was somewhat scornful of the applicant’s assistance to police and refused any discount. It was submitted before this Court that the Judge’s findings were erroneous and some discount for assistance ought to have been given. The applicant’s proffered assistance came late and was of little practical benefit to police. As soon it was apparent to the applicant that the police were at the bank shortly before his arrest in May 2005 he deleted the phone number of the person Frank from his mobile telephone. When about a year after his arrest and at the behest of his legal advisor he sought to gain an advantage by attempting to assist police, there was little useful information he could provide by way of identifying his principal.
21 In November 2005 when he understood he was going to meet with Frank he attempted to contact police but the officer was absent from the station. In any event Frank did not show for the meeting. Shortly thereafter shots were fired at the applicant’s motor vehicle, apparently because he had been unable to return the money that was in his possession at the time of his arrest. This frightened him so that he made no further contact with police until April 2006. While it might be understandable that the applicant was in fear of making further approaches to police until persuaded to do so by his lawyer, the simple fact is that he did not again seek to speak to police until a time when he could give little assistance and the police could do little to further their investigations.
22 Although the applicant might in April 2006 have given police all the information that he could, the simple fact is that it was vague and of little weight. While the police officer giving evidence at the hearing conceded that he had some idea who Frank was and had a surname, he stated that police were not in a position to confirm what the applicant told them. There was also evidence that a solicitor had sought to make a claim on money confiscated by police from the applicant on behalf of a client but the police had not been in a position to advance their inquiries further. The police also attempted to make inquiries in Lebanon on the basis of what the applicant had told them in his interview in April but had been frustrated by the civil unrest there.
23 In my opinion it was open to the Judge to make the findings he did and to determine not to give the applicant any discount by way of assistance. Although the attempt made to assist the police is one of the matters to be considered, so is the effectiveness of the assistance and its benefit to the authorities: R v El Hani [2004] NSWCCA 162 at [73]. The effectiveness here was minimal and this was a result principally of the delay by the applicant in proffering it or because he had intentionally destroyed evidence that might have helped. There was no suggestion made to police that they had been negligent in following up leads provided to them by the applicant or otherwise. While another judge might have awarded the applicant with a small discount, such as about 10 per cent, it was in my view within the Judge’s discretion to withhold a discount.
24 In determining the sentence that should be imposed by this Court when re-sentencing the applicant I have taken into account material placed before the Court for this purpose. This was an affidavit by the applicant annexing various certificates gained by him from courses, carried out while he has been in custody, to advance his rehabilitation.
25 By reason of the fact that the applicant had no prior convictions and was generally of good character with good prospects of rehabilitation it seems to me that the appropriate ratio between the minimum period of custody and the overall term should be 60 per cent.
26 I propose the following orders:
2. The sentences imposed in the District Court are quashed and in lieu the applicant is sentenced as follows:
1. The application for leave is granted and the appeal allowed.
Count 1: Imprisonment for 14 months from 19 September 2006 and to expire on 18 November 2007.
Count 2: (taking into account the matters under s 16BA) Imprisonment for 2 years from 19 February 2007 and to expire on 18 February 2009.
Count 3: Imprisonment for 19 months from 19 February 2007 and to expire on 18 September 2008.
Count 4: Imprisonment for 6 months from 19 February 2007 and to expire on 18 August 2007.
The applicant is to serve a period of 1 year 5 months from 19 September 2006 and to expire on 18 February 2008 and is to be released to recognizance on 19 February 2008.The sentences for the related matters are confirmed but are to date from 19 September 2007.
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