Betka v R; Ghazaoui v R; Hawchar v R

[2020] NSWCCA 191

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191

Hearing dates:

7 July 2020

Date of orders:

5 August 2020

Decision date:

05 August 2020

Before:

Fullerton J at [1]; Wilson J at [86]; Ierace J at [87]

Decision:

1. The sentences imposed on each of the applicants in the District Court on 2 December 2019 are quashed.

2. In substitution the sentences imposed on each of the applicants are as follows:

Zouheir Ghazaoui

(i) Imprisonment for 2 years and 3 months to date from 2 December 2019.

(ii) In accordance with s 19AC of the Crimes Act 1914 (Cth), a recognizance release order of 1 year and 1 month. The effect of that order is that Ghazaoui will be released from custody on 1 January 2021.

Ahmed Hawchar

(i) Imprisonment for 2 years and 4 months to date from 2 December 2019.

(ii) In accordance with s 19AC of the Crimes Act 1914 (Cth), a recognizance release order of 1 year and 2 months. The effect of that order is that Hawchar will be released on 1 February 2021.

Bilal Betka

(i) Imprisonment for 6 years to date from 19 December 2017. After taking into account the sentence imposed by Harrison J on 20 February 2020, and having regard to the operation of ss 19AD and 19AG of the Crimes Act (Cth), a non-parole period of 3 years and 6 months is imposed, to expire on 18 June 2021.

Catchwords:

CRIME – appeals – appeal against sentence – three co-offenders – money laundering offences – whether error in assessment of the utilitarian value of guilty plea – whether sentence offends parity principles – error established – applicants resentenced

Legislation Cited:

Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth)

Crimes Act 1914 (Cth)

Criminal Appeal Act 1912 (NSW)

Criminal Code Act 1995 (Cth)

Cases Cited:

Bae v R [2020] NSWCCA 35

Chuang v R; Chen v R [2020] NSWCCA 60

Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57

R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category:

Principal judgment

Parties:

Bilal Betka (Applicant)
Zouheir Ghazaoui (Applicant)
Ahmed Hawchar (Applicant)
The Crown (Respondent)

Representation:

Counsel:
P Lange (Applicant Betka)
D Barrow (Applicants Hawchar and Ghazaoui)
D Jordan / E Tringali (Crown)

Solicitors:
Kings Law Group (Applicant Betka)
Executive Legal (Applicants Hawchar and Ghazaoui)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2017/383939; 2018/176836; 2018/176600

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Date of Decision:

02 December 2019

Before:

Noman SC DCJ

File Number(s):

2017/383939; 2018/176836; 2018/176600

Judgment

1. FULLERTON J: Zouheir Ghazaoui, Ahmed Hawchar and Bilal Betka (referred to hereafter by their surnames) seek leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal sentences of imprisonment imposed by Noman SC DCJ on 2 December 2019 for their role in a money laundering syndicate which was active between December 2016 and October 2017 and which had as its object the avoidance of the mandatory reporting requirements in s 142 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth).

The offences

2. Ghazaoui and Hawchar were charged pursuant to s 404.4(1) of the Criminal Code Act 1995 (Cth) with dealing with money to the value of $100,000 or more intending that it would become an instrument of crime, by structuring cash deposited into various bank accounts across Sydney in amounts less than $10,000 to avoid the reporting requirements in the Anti‑Money Laundering and Counter‑Terrorism Financing Act on transactions of $10,000 or more.

3. That offence attracts a maximum penalty of 20 years’ imprisonment or 1200 penalty units, or both.

4. Both Ghazaoui and Hawchar pleaded guilty to that offence in the Local Court on 10 May 2017 and were committed to the District Court for sentence.

5. Betka was charged pursuant to s 400.3(1) of the Criminal Code with jointly committing the offence of dealing with money to the value of $1,000,000 or more with Ghazaoui and Hawchar and with three other co-offenders (Ahmad Ali, Elamira-Zahira Elayouby and Fouad Moussa – hereafter referred to by their surnames) intending that the money dealt with by them would become an instrument of crime, by each of them structuring cash deposited into various bank accounts across Sydney in amounts less than $10,000 so as to avoid the reporting requirements in the Anti‑Money Laundering and Counter‑Terrorism Financing Act on threshold transactions of $10,000 or more.

6. That offence attracts a maximum penalty of 25 years’ imprisonment or 1500 penalty units, or both.

7. Betka also pleaded guilty in the Local Court on 10 May 2017 and was committed to the District Court for sentence.

The sentences imposed on the applicants

8. After applying a discount of 20% for his plea of guilty, Ghazaoui was sentenced to imprisonment for 3 years and 2 months with a non-parole period of 1 year and 11 months to date from the date of sentence.

9. After applying a discount of 20% for his plea of guilty and 10% for his assistance to the authorities, Hawchar was sentenced to 3 years and 4 months’ imprisonment with a non-parole period of 1 year and 10 months to date from the date of sentence.

10. After applying a discount of 20% for his plea of guilty and 10% for his assistance to the authorities, Betka was sentenced to 6 years and 9 months’ imprisonment with a non-parole period of 4 years to date from 17 December 2017, to account for his pre-sentence custody.

The grounds of appeal

11. All three applicants contend that the sentencing judge erred in her approach to the assessment of the utilitarian value of their pleas of guilty.

12. All three applicants also complain that their sentence offends parity principles:

1. Hawchar contends he has a justifiable sense of grievance when his sentence is compared to his co-offenders Ghazaoui and Betka;

2. Ghazaoui contends he has a justifiable sense of grievance when his sentence is compared to the sentence imposed upon Betka and the sentences imposed upon Ali and Moussa, both named as co-offenders in the particulars of the charge to which he pleaded guilty but who were sentenced by Yehia SC DCJ in separate sentence proceedings; and

3. Betka contends he has a justifiable sense of grievance when his sentence is compared to the sentences imposed by Yehia DCJ on each of Ali, Elayouby and Moussa because of the discount of 20% her Honour applied for the utilitarian value of their pleas of guilty which were not entered at the earliest opportunity.

13. The applicant Ghazaoui advances as his third ground of appeal that the sentencing judge failed to take his good character into account on sentence.

The proceedings on sentence and the sentencing judge’s findings

14. On 22 November 2019, the applicants participated in a joint sentencing hearing.

15. Separate statements of fact were tendered against each applicant.

16. Only Betka signed the statement of facts as agreed facts. Both Ghazaoui and Hawchar disputed the relevance of some paragraphs of the statement of facts tendered by the Crown in their sentence proceeding. In particular, they both disputed the relevance of the fact that other members of the syndicate leased premises in Bankstown where electronic and other surveillance established that large amounts of cash were counted and distributed for the purposes of being deposited by syndicate members into various bank accounts, and where receipts for those deposits were held. The association of both applicants with premises at Reynolds Avenue, Bankstown, leased by the syndicate for the same purpose was not in dispute.

17. The relevance of the matters in dispute did not appear to have any ultimate bearing on the sentences imposed on Ghazaoui and Hawchar. There was no challenge on the appeal to her Honour’s finding that both applicants (and Betka) knowingly participated in organised criminal activity and that each performed an indispensable role in the overall criminal scheme, with the wider activities undertaken by other co-offenders, including their use of the leased premises to facilitate the objective of the criminal syndicate, providing the context in which that offending occurred.

18. It was conceded by the Crown on sentence that the origin of the cash dealt with by the syndicate was unknown. Additionally, it was no part of the Crown case that the applicants had any knowledge or belief as to the ultimate disposition of the monies they banked or the purpose to which those funds would ultimately be put by the recipients. Her Honour was satisfied, however, that each of the applicants must have suspected that the money they dealt with derived from some illegal activity and that each of them was aware they were engaging in illegal activity by banking cash in structured amounts less than $10,000 on multiple occasions.

The roles of the applicants

19. When assessing the role of the applicants in the criminal syndicate the sentencing judge took into account the time frame of their offending; the number of discrete transactions in which they were personally involved and the total amount banked by them over that time frame together with the state of mind that accompanied their offending. Her Honour also noted that the difference in the maximum penalties in s 400.3(1), being 20 years for the offence for which Ghazaoui and Hawchar were to be sentenced, and s 404.4(1) and 25 years for the offence for which Betka was to be sentenced, was referable to the amount of money involved: not less than $100,000 for the offence under s 400.3(1) and not less than $1,000,000 for the offence under s 404.4(1).

20. Ghazaoui was sentenced for his role on the basis that he personally conducted 38 banking transactions in the total amount of $289,602 over six days between 13 September and 19 September 2017.

21. Hawchar was sentenced for his role on the basis that he personally conducted 19 banking transactions in the total amount of $121,830 over eight days between 11 October and 19 October 2017. On his arrest, he was also in possession of an additional $116,500 intending that those monies would also be the subject of a series of structured banking transactions.

22. Although Ghazaoui conducted twice the number of transactions as compared to Hawchar, and deposited more than twice the amount of money in total, her Honour found that, by reason of his contact with other syndicate members and his association with the leased premises, Hawchar was more deeply involved in the syndicate. Notwithstanding those differences, her Honour considered that the role of both applicants reflected mid-level offending.

23. Betka was sentenced for his role on the basis that he personally conducted 558 banking transactions in the amount of $4,002,652 within a five month period between May and October 2017, with those funds forming part of the $18,141,420 he dealt with jointly with other members of the syndicate including with Ghazaoui and Hawchar in September/October 2017 and with Ali, Elayouby and Moussa, each of whom made thousands of bank deposits between December 2016 and October 2017.

24. Her Honour characterised Betka’s offending as in the mid to high level based in large part upon her finding that together with being directly responsible for transacting 558 deposits over a period of months he was also responsible for the distribution of funds to other members of the syndicate, together with providing them with information to assist them depositing funds into nominated bank accounts.

The applicants’ criminal antecedents

25. The Crown tendered the antecedent criminal records of Hawchar and Betka.

26. Hawchar was aged 30 at the time of sentence. He had a criminal record which included an aggregate sentence of imprisonment of 2 years and 6 months with a non-parole period of 18 months imposed in the District Court on 16 December 2016 for extortion with threats of violence. He was also sentenced in the Local Court on 8 May 2017 for dealing with property suspected of being the proceeds of crime which attracted a sentence of imprisonment of 6 months to be served concurrently with the sentence imposed in the District Court. He was released to parole on 15 April 2017. He was subject to conditional liberty under the parole order at the time of the offending. Both he and Ghazaoui were granted bail on their arrest in November 2017 which continued until the date of sentence.

27. Betka was aged 27 at the time of sentence. He also had a criminal record, including an entry for assault occasioning actual bodily harm committed in the context of a family dispute which attracted a s 9 bond imposed after his arrest. Her Honour was also made aware that Betka was due to be sentenced in the Supreme Court for what she was given to understand was a terrorism related offence. Although the date of that offending also predated his involvement in the money laundering syndicate, for sentencing purposes her Honour treated Betka as a person of good character. She also took into account the highly restrictive conditions of his remand as an Extreme High Risk Inmate.

28. Finally, confidential affidavits which attested to the assistance Hawchar and Betka had provided to the authorities were tendered. They were accounted for in the sentence imposed.

The applicants’ subjective circumstances

29. Each of the applicants tendered a compendium of documentary material variously attesting to their family circumstances, education and work history.

30. Betka was not employed at the time of his offending. On his release to parole five months before committing the money laundering offence, Hawchar commenced working in a family-run fruit and vegetable delivery service and was involved as a volunteer in a community-based organisation. Ghazaoui was subcontracting to a landscape gardening company which had previously employed him.

31. The applicants also tendered expert reports from either a forensic psychiatrist or clinical psychologist. None of the applicants gave evidence but each gave an account to those whose testimonials were tendered in the proceedings of their contrition, remorse and regret at having involved themselves in syndicated criminal offending. Her Honour was satisfied that this allowed for a finding of what she described as a “component of contrition”.

32. The sentencing judge went on to find that although the applicants did not acknowledge the social harm occasioned by money laundering, because their conduct did not involve any identifiable victim, this may have operated to fetter both insight into their offending and a more fulsome expression of remorse.

Ghazaoui

33. Ghazaoui was aged 29 at the date of sentence. He had no criminal record. Her Honour found him to be a person of good character. Her treatment of his prior good character as a factor in mitigation of sentence is the subject his third ground of appeal.

34. Her Honour considered that part of Dr Allnutt’s report where he opined that Ghazaoui’s anxiety disorder had contributed to him amassing debts generated by his substance abuse and gambling, and which ultimately motivated him to offend as a means of obtaining money, of limited weight. She went on to find that although Ghazaoui’s prospects of rehabilitation and not reoffending were reasonable, personal deterrence had a continuing role to play in the calculation of sentence. Her Honour also accepted that full-time custody would be productive of hardship for his dependent family but not to the extent of it impacting upon the sentence to be imposed.

Hawchar

35. After considering that part of Dr Furst’s report where he addressed the particular difficulties to which Hawchar’s wife and four children would be exposed were he sentenced to a lengthy term of full-time imprisonment, her Honour indicated that, because the negative impact of imprisonment on Hawchar’s family was modestly greater than that which would normally be anticipated where an offender has a dependent family, there would be a reduction in his sentence, albeit to a modest degree.

36. In considering the risk of Hawchar reoffending, which was assessed by Dr Furst as moderate, her Honour concluded that Hawchar’s prospects of rehabilitation and not reoffending were fair. She went on to say:

He has provided assistance which supports the path to rehabilitation however I observe he similarly offered assistance in 2016 and received a sentence reduction. Evidently, this offer or provision of assistance did not reflect rehabilitation. The determination of reasonable prospects of rehabilitation proved optimistic. He committed this offence soon after being released to parole.

I reiterate the comment made by Judge Hock wherein she stated, “It must be said that the picture painted of the offender is very different from the man described in the agreed facts”.

Betka

37. After giving consideration to Dr Seidler’s report, her Honour found that the difficulties Betka experienced in childhood was causally connected to various lifestyle choices he made as an adult, including drug use which Dr Seidler was satisfied motivated his offending. Her Honour proposed a modest amelioration to Betka’s sentence to reflect those findings but, as with the sentence to be imposed on Ghazaoui, she considered personal deterrence to have a continuing role in the calculation of his sentence. Her Honour found Betka’s prospects of rehabilitation and not offending were reasonable, in part based upon his willingness to provide assistance to the authorities.

The sentence imposed on Betka by Harrison J on 20 February 2020

38. Following his plea of guilty to a terrorism-related offence contrary to s 119.1(2) of the Criminal Code committed between March and July 2015 (that is, prior to his involvement in the money laundering syndicate), Betka was sentenced by Harrison J on 20 February 2020 to 3 years 8 months’ imprisonment with a non-parole period of 2 years and 9 months to date from 19 June 2018.

39. That sentence is of relevance solely in relation to the second ground of Ghazaoui’s appeal, it being his contention that the structure of the sentence imposed by Harrison J and the degree of concurrency with the sentence imposed by Noman DCJ means that only 1 year and 3 months of the non-parole period of 4 years and 9 months is referable to the money laundering offence, whereas Ghazaoui is serving a non-parole period of 1 year and 11 months for what he contends to be demonstrably less serious offending of the same kind.

The sentences imposed upon the co-offenders Ali, Elayouby and Moussa by Yehia DCJ on 20 March 2020

40. Following the pleas of guilty by Ali and Elayouby entered in the District Court on 29 November 2019 and by Moussa also in the District Court on 13 December 2019 to the same offence for which Betka was sentenced by Noman DCJ (subject only to the timeframe of their offending being more confined, namely between April 2017 and October 2017), Yehia DCJ imposed sentences of imprisonment on all three offenders although, in Elayouby’s case, to be served by an Intensive Corrections Order.

41. The sentences of imprisonment imposed on Ali and Moussa were the focus of the parity arguments advanced by of each of the applicants.

42. Ali was sentenced by Yehia DCJ on the basis that he personally conducted 108 banking transactions totalling $664,930. He was also found to be in possession of $1,259,483 which he intended to be deposited in a further series of structured banking transactions.

43. Moussa was sentenced on the basis that he personally conducted a minimum of 59 banking transactions totalling $379,830. He was also found to be in joint possession of the monies held by Ali and for the same purpose.

44. Elayouby was personally involved in a minimum of 325 deposits totalling $1,546,646. She also shared possession of the same monies as her co-offenders.

45. Yehia DCJ was satisfied that the overall objective gravity of the offending of all three offenders was in the middle range of seriousness for offences of the kind contemplated by s 400.3(1) of the Criminal Code. She appointed Ali and Moussa’s roles in the criminal syndicate in the mid-level, as neither of them were architects or organisers. She regarded Moussa’s role as slightly more serious than Ali’s in that he gave directions to Elayouby on a number of occasions and had authority to deal with unforeseen circumstances, albeit generally under the direction of another or others. Her Honour considered Elayouby to be subordinate to each of her five co-offenders (including the three applicants) and that her offending was in the lower end of the range of objective seriousness.

40. Yehia DCJ applied a discount of 20% for the utilitarian value of the pleas of guilty. Although they were not entered at the first opportunity, they did avoid the cost and time that would have been involved in a trial extending between three and six months. This was accompanied by a further finding that the pleas of guilty reflected a subjective willingness on the part of each offender to facilitate the course of justice despite the strength of the Crown case. In the sentence imposed on Moussa an additional discount of 10% was allowed for his assistance to the authorities.

41. Her Honour was aware of the sentences imposed by Noman DCJ on each of the applicants as co-offenders in the same criminal scheme, and was mindful of the need to consider questions of parity. She considered Betka’s role to be at a higher level to that of both Ali and Moussa and further, in contrast to Noman DCJ’s finding that Betka’s prospects of rehabilitation were reasonable, that the prospects of rehabilitation of both Ali and Moussa were good (and excellent in the case of Elayouby). She went on to find that although Ali and Moussa’s criminality was “slightly higher” than Ghazaoui and Hawchar, their subjective cases and good prospects of rehabilitation called for sentences of imprisonment in the same range as the sentences imposed on Hawchar and Ghazaoui by Noman DCJ.

42. After taking into account matters personal to each of the three offenders, including the prior good character of each of them and that the material tendered by them supported a finding that they were remorseful and contrite, the following sentences were imposed:

Ahmad Ali: 3 years and 4 months’ imprisonment with a non-parole period of 1 year and 6 months.

Fouad Moussa: 3 years and 7 months’ imprisonment with a non-parole period of 1 year and 9 months.

Elamira-Zahira Elayouby: 2 years’ imprisonment to be served by way of an Intensive Correction Order.

Ground 1: The sentencing judge erred in her approach to the utilitarian discount for the applicants’ pleas of guilty

49. After noting that the pleas of guilty were entered in the Local Court at the earliest opportunity (a concession made by the Crown in writing); that each of the pleas facilitated the course of justice; and that each was of utilitarian value for that reason, the sentencing judge went on to say:

Each [of the pleas] was entered to what presents as a strong prosecution case. Each plea primarily presents as being entered in the face of a strong case and in recognition of the inevitable rather than a pure desire to facilitate the course of justice. However, each has resultantly facilitated the course of justice. …

Submissions were advanced that the pleas warranted a reduction of 25% in accordance with the approach taken in State matters. In consideration of the factors informing the pleas, I intend to apply a reduction of 20% after the otherwise appropriate sentence has been determined.

Submissions before the sentencing judge

50. The sentencing judge did not further identify the factors which she considered warranted a sentencing discount of 20% in contrast to the 25% discount which senior counsel who appeared for Hawchar and Ghazaoui in the sentencing hearing submitted should be applied. Although counsel recognised there was no statutorily mandated discount for an early plea of guilty for a Commonwealth offence, in his submission when assessing the utilitarian value of a guilty plea there was no principled basis to discriminate between offenders who plead guilty to a Commonwealth offence and those who plead guilty to a State offence since in each case there is a saving of time and resources in the system of criminal justice administered by State courts. Counsel for Betka expressly adopted those submissions.

51. In its written submissions tendered on sentence, the Crown accepted that a significant factor relevant to the assessment of the sentencing discount for the utilitarian value of the guilty pleas was the fact that they were entered at the first reasonable opportunity. The Crown also accepted that at least the timing of the pleas reflected a demonstration of the applicants’ contrition and acceptance of responsibility and their willingness to facilitate the course of justice. The Crown further submitted that were the Court to also undertake an assessment of the subjective value of the applicants’ pleas of guilty (an approach urged upon the Court by senior counsel for Hawchar and Ghazaoui and least impliedly adopted by counsel for Betka), the Court would take into consideration the fact that the evidence against each offender was substantial, being supported by significant electronic evidence, tracking data, CCTV footage and banking records and, that being the case, the pleas were unlikely to have been motivated by any subjective willingness to facilitate the course of justice as distinct from being entered in recognition of the inevitability of conviction.

52. In the Crown’s ultimate submission, the qualification of the sentencing discount for the guilty pleas, inclusive of the objective and subjective value that might be ascribed to them, was a matter for the Court.

Submissions on the appeal

53. The applicants’ counsel accepted that the inevitability of conviction in the face of a strong Crown case might be material to whether an offender who pleads guilty to a Commonwealth offence is motivated by a subjective desire to facilitate the administration of justice and to accept criminal responsibility for their offending. Counsel submitted, however, that it was not open to the sentencing judge to have taken either the strength of the Crown case or the subjective motivations of the applicants into account in quantifying the utilitarian value of the early pleas. It was submitted, consistent with settled authority in this Court, that the assessment of the utilitarian value of the plea of guilty in the sentencing of federal offenders is to be made largely by reference to the timing of the plea although, as conceded by the Crown before the sentencing judge in this case, the timing of the pleas also reflected a demonstration of the applicants’ contrition and acceptance of responsibility and their willingness to facilitate the course of justice.

54. In the applicants’ submission, if by referring to factors “informing the pleas of guilty” the sentencing judge is to be taken to be referring to factors informing an objective assessment of their utilitarian value, it was a sentencing error to have reduced the quantification of the sentencing discount from 25% to 20% because of the subjective motivations of the applicants. Counsel submitted that it is possible that her Honour may have understood the Crown to have submitted that this approach was open whereas, properly understood, the Crown’s submissions on sentence went no further than to suggest that the subjective motivations of the applicants could only have a bearing on an assessment of the subjective value of guilty pleas were the Court to undertake that assessment. The applicants submitted that the critical distinction the Crown had made in its written submissions between the objective and subjective value in the pleas of guilty was not reflected in her Honour’s sentencing reasons and that she has impermissibly reduced or discounted the utilitarian value of the plea of guilty by finding that because of the strength of the Crown case and the recognition by the applicants of the inevitability of a conviction there was no subjective willingness or desire on their part to facilitate the course of justice.

55. On the appeal, the Crown submitted there was no error in the sentencing judge’s treatment of the utilitarian value of the applicants’ pleas of guilty in light of what the Crown referred to as the applicants’ evidence on the issue of contrition and the strength of the Crown case, and that the first ground of each of the sentence appeals should be dismissed for that reason. It was only in the submissions filed in response to the submission filed by counsel for Betka that the Crown went so far as to submit that it was open to the sentencing judge in assessing the utilitarian value of the pleas to have regard to the fact that they were entered in the face of a strong Crown case and in recognition of the inevitability of conviction. No authority was cited for that proposition.

Consideration of the first ground of appeal

56. Consistently with both s 16A(2)(g) of the Crimes Act 1914 (Cth) which provides that a plea of guilty must be taken into account in sentencing a federal offender and with the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 that s 16A(2)(g) includes an assessment of the utilitarian value of a guilty plea, I am of the view that it was the objective or utilitarian value of the pleas of guilty that the sentencing judge was assessing in the passage extracted above at [49] and that in appointing a discount of 20% her Honour was in error by taking into account factors that were material solely to an assessment of the subjective value of the applicants’ pleas of guilty.

57. In Bae v R [2020] NSWCCA 35, following the decision of this court in Xiao, Johnson J (Bell P and Walton J agreeing) discussed the extent to which the approach to an assessment of the utilitarian value of a guilty plea to a State offence, as explained in R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102, assists in achieving a practical understanding of the utilitarian value of a guilty plea for a Commonwealth offence.

58. At [50], Johnson J noted the approach taken in Huang v R (2018) 96 NSWLR 743; [2018] NSWCCA 57 where Beazley P (Bathurst CJ, Hoeben CJ at CL, McCallum and Bellew JJ agreeing) adopted the reasoning applicable to an assessment of the range of discounts for a guilty plea for State offences in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 to guilty pleas for Commonwealth offences, whilst also noting the need to guard against the application of the “norm” that applies to State offences.

59. At [54], his Honour considered that the principles in Borkowski also assist in providing a practical understanding of the features that inform the utilitarian value of a guilty plea for Commonwealth offences, including, significantly for the purpose of this appeal, that the timing of the plea will be largely determinative of the extent of the discount, although some allowance for the strength of the Crown case might be made where the trial of the offender would be particularly complex or lengthy. His Honour then went on to observe that subjective considerations do not attract a separate sentencing discount; instead, those considerations may inform the extent to which an offender is contrite and, in accordance with s 16A(2)(f) of the Crimes Act (Cth), may be taken into account in an offender’s favour in that way. His Honour said:

[55] It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender’s favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations.

[56] As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]:

“Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.”

[57] The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender.

60. In Chuang v R; Chen v R [2020] NSWCCA 60 (an appeal heard after Bae was decided) Basten JA also noted that the distinction between the state of mind of an offender as might be revealed by a plea of guilty and the objective benefits to the administration of justice which, in turn, gave rise to a number of consequential considerations:

[16] First, the existence of a strong prosecution case may diminish the weight given to the willingness to facilitate the administration of justice, because it may reveal little less than acceptance of the inevitable. A strong prosecution case will generally not diminish the utilitarian value of the plea.

[17] Secondly, whilst the subjective willingness to facilitate the administration of justice may be seen as a mitigating factor, it will not give rise to an arithmetical discount. In fact, it is apt to lead to confusion to describe such a subjective consideration, which may be closely related to factors such as contrition and remorse, as involving a “discount”. Referring to the strong prosecution case, the sentencing judge stated that “this clearly will affect the actual discount applied.”

[18 Thirdly, although as a mitigating factor willingness to facilitate the course of justice should be established on the balance of probabilities, it should not be assumed that the existence of a strong prosecution case necessarily diminishes the factor to any particular extent. The court should state if it is satisfied that the plea was motivated partly or largely by the inevitability of conviction, or that no finding can be made.

[19] Fourthly, subjective elements such as contrition and remorse may provide a basis for a finding that prospects of rehabilitation are good. That itself is a mitigating factor. Remorse may be demonstrated by a willingness to save the victim of the offence of the need to relive the events of the offending by giving evidence in court. However, such an attitude may also be described as willingness to facilitate the administration of justice. There is a danger that a multiplication of labels for what are essentially similar considerations may lead to double counting. That should be avoided. In particular, it suggests the need to avoid discounting for such factors, an exercise which implies a starting point reached without consideration of a particular factor, followed by a staged reduction. That may be the correct approach to adopt with respect to the utilitarian value of a plea; it is not appropriate with respect to most other mitigating factors, absent statutory authority.

61. Both decisions of this Court were decided after the applicants were sentenced. Both decisions have clarified the treatment of an offender's plea of guilty in a sentencing exercise which involves Commonwealth offences.

62. While I accept that in practical terms the factors which inform the sentencing considerations in ss 16A(2)(f) and (g) of the Crimes Act (Cth) might overlap, what must be borne in mind is that it is only in respect of the objective or utilitarian value of a plea of guilty that the Court will apply an arithmetical discount when sentencing for a Commonwealth offence, a discount which is largely, although not exclusively, informed by the timing of the plea. Where a sentencing court is persuaded that the timing of the plea itself reflects a willingness on the part of the offender to facilitate the course of justice, that finding should find expression in the reasons for sentence as one of the factors which informs the value of the plea without it attracting any additional or arithmetical sentencing discount. Importantly, however, where the Court does not make that finding, or where the Court is not otherwise satisfied that the evidence relied upon by an offender allows for a finding of a subjective willingness to facilitate the course of justice as a mitigating factor on the balance of probabilities, the objective or utilitarian value of the plea should not be diminished.

63. For those reasons, I am satisfied that the error the subject of the first ground of appeal is made out and this Court should move to resentence the applicants, allowing a 25% discount for the utilitarian value of their pleas of guilty.

64. That being the case, the question whether the sentences imposed on the applicants infringed parity principles, the error the subject of the second ground of appeal, does not need to be determined. It will be necessary, however, when resentencing each of the applicants, to take into account the sentences imposed by Yehia DCJ on the co-offenders Ali and Moussa to ensure there is due proportion between the sentences imposed on all five male offenders who were sentenced for their involvement in the money laundering scheme. Since Yehia DCJ was satisfied that Elayouby was subordinate to her co-offenders and that her subjective circumstances, including her age, compelled a favourable finding as to her prospects of rehabilitation, the sentence of 2 years’ imprisonment was ordered to be served by an Intensive Corrections Order. For that reason, Elayouby’s sentence does not attract parity considerations.

Ghazaoui’s third ground of appeal

65. Before moving to resentence, it is appropriate to deal with Ghazaoui’s third ground of appeal. However, it can be dealt with relatively briefly since Ghazaoui’s prior good character will need to be taken into account in his favour on resentence.

66. When dealing with Ghazaoui’s subjective circumstances her Honour recorded the fact that he was both a person with no antecedent criminal history and that he came before the Court for sentence as a person of good character. The complaint is that her Honour did not refer again to his prior good character, either under s 16A(2)(m) of the Crimes Act (Cth) or as a matter distinguishing him from Hawchar in the calculation of sentence, despite Hawchar having a prior criminal record and having committed the money laundering offence whilst on parole.

67. Where there is nothing in the sentencing reasons to indicate that her Honour gave Ghazaoui’s prior character any weight at all in the sentencing exercise, whether by a finding that the need for specific deterrence was reduced and/or his prospects of rehabilitation increased, or more generally that some leniency should be afforded him as a first-time offender, I am satisfied that the error the subject of Ghazaoui’s third ground of appeal is established.

Resentence of the applicants

68. In addition to the evidence tendered before the sentencing judge, the applicants Hawchar and Ghazaoui read a number of affidavits on resentence which address their current circumstances having served almost eight months in custody.

69. Betka adduced no additional evidence on resentence. While Betka will be resentenced to correct the error in the calculation of the utilitarian value of his plea of guilty (with his assistance to the authorities attracting a combined discount of 30% as distinct from the 25% allowed by Noman DCJ) with his sentence backdated to commence on 19 December 2017 to account for his pre-sentence custody, the subsequent sentence imposed by Harrison J ordered to commence on 19 June 2018 to provide for a degree of accumulation upon the sentence imposed by Noman DCJ will not be affected since that sentence is not the subject of review in these proceedings.

The evidence relied upon by Ghazaoui on resentence

70. An affidavit of Mohammed Khan solicitor of 5 July 2020 was read. He deposes to the fact that upon his perusal of the Department of Corrective Services records Mr Ghazaoui now has a C2 classification; he has not incurred any disciplinary charges since being sentenced; and that he is currently housed in the Parklea Correctional Centre having been transferred from the Glen Innes Correctional Centre on compassionate grounds, inter alia, as a consequence of his father’s illness and the difficulties his family have experienced visiting him in Glen Innes, even before the onset of COVID-19 and the restrictions on family contact visits.

71. The Court’s attention was drawn in particular to a series of case notes reports annexed to Mr Khan’s affidavit. Although Ghazaoui has the ongoing support of his wife, his conviction and subsequent incarceration has put pressures on the maintenance of his marriage. He has the continuing support of his parents although his father is unwell. Ghazaoui gave an account to a departmental officer that the experience of his conviction and incarceration has reinforced his desire to live what he described as a “conventional lifestyle” hopefully after being reunited with his family, including his wife. He expressed an acceptance of responsibility for his actions. Mr Khan also reports that Ghazaoui has been engaged in employment and has largely been the subject of positive comment from custodial staff.

72. The applicant’s affidavit of 1 July 2020 was also read. He confirmed his current custodial circumstances. He details the restrictions that are in place because of the current health pandemic and the impact that separation from his family has had on his mental health. He says in the seven months of incarceration he has only seen his wife and young children in person six or seven times. He says without family visits he has nothing to look forward to and he struggles daily with the reality of not being able to support his wife and children because of the poor choice he made in committing the money laundering offences.

The evidence relied upon by Hawchar on resentence

73. An affidavit of Mohammed Khan, solicitor, of 5 July 2020 was read. He deposes to the fact that the Department of Corrective Services records note that Hawchar also has a C2 classification; has not incurred any disciplinary charges since being sentenced and is currently housed in the Parklea Correctional Centre having been transferred from the Glen Innes Correctional Centre on compassionate grounds, including his wife’s ongoing and serious health condition. Mr Khan also reports that Hawchar is engaged in employment, that he has participated in courses and has been the subject of positive comment by custodial staff. Since the onset of the pandemic his visits with his family have been limited. However, he remains in regular phone contact with them.

74. Affidavits from the applicant and his wife of 1 July 2020 were also read. The applicant’s wife gives an account of an admission by ambulance to the Emergency Department of St George Hospital for acute abdominal pain after complications from pregnancy which requires corrective surgery for which she is currently on a waiting list. In circumstances where she has little in the way of family support she has had to defer undertaking surgery until her husband’s release from custody.

75. The applicant deposes to his experience in custody being more difficult than his custodial experience in 2015 given his family circumstances, including the pressure of his incarceration on his wife who continues to suffer ill health and the restrictions on access to his family.

The issue of parity

76. In the application of parity principles in the resentencing exercise it is of significance that the offenders Ali and Moussa were sentenced by Yehia DCJ for an offence against s 400.3(1) of the Criminal Code against a statutory maximum of 25 years’ imprisonment (the same offence for which Betka is to be resentenced) while the offenders Ghazaoui and Hawchar are to be resentenced for an offence against s 404.4(1) against statutory maximum of 20 years’ imprisonment.

77. I note that Yehia DCJ found as a fact that Betka’s role in the money laundering scheme and the criminality that was reflected in that role was at a higher level to that of Ali and Moussa and “slightly higher” to that of Ghazaoui and Hawchar. For my part, I consider the relative gravity of the criminality of the offenders Ali and Moussa, when contrasted with that of Ghazaoui and Hawchar, as more than slightly objectively serious given the significant difference in the amount of money Ali and Moussa were in found to have in their possession intending that it would be the subject further structured banking transactions and that their involvement in the syndicate was measured in months as compared to the days over which Ghazaoui and Hawchar were involved. Additionally, both Ali and Moussa were personally involved in a greater number of banking transactions as compared with Ghazaoui and Hawchar. I otherwise adopt Noman DCJ’s findings as to the role all three applicants performed in the money laundering scheme, including the extent of their offending on a spectrum of objective seriousness.

78. The subjective circumstances of the co-offenders also differ in that Hawchar was not sentenced as a person of good character given his previous antecedent criminal record, while Ali, Moussa and Ghazaoui had the benefit of a finding of good character.

79. Whilst there are other obvious and to a large extent unremarkable differences in the subjective circumstances of all five co-offenders, I adopt the findings made by Noman DCJ that Ghazaoui’s mental health contributed to his offending in the sense of it making him more susceptible to involving himself in the money laundering scheme. I also endorse her Honour’s finding that notwithstanding his mental health, Ghazaoui’s main motivation was financial, a motivation he shared with all co-offenders.

80. I have had regard to the objective seriousness of the offending for which each of the applicants are to be resentenced, including the role they performed in the money laundering scheme. The sentences to be imposed also reflect the need for general deterrence, a consideration specifically provided for in s 16A(2)(k) of the Crimes Act (Cth). I have also taken into account the subjective circumstances of each of the offenders, including their prospects of rehabilitation provided for in s 16A(2)(n) of the Crimes Act (Cth) and, in the case of Ghazaoui in particular, his prior good character.

81. I regard Ghazaoui’s prospects of rehabilitation as sound having regard to his prior good character, his age and his mental health at the time of the offending for which he is currently receiving treatment. I am unable to express the same degree of confidence in assessing Hawchar’s prospects of rehabilitation and any risk of him reoffending given that he committed the money laundering offence whilst on parole for another serious offence. I do accept, however, that since his arrest he has shown a commitment to his family and community which allows for a finding that his prospects of rehabilitation are reasonable. I make the same finding with regards to Betka’s prospects of rehabilitation and his risk of his reoffending.

82. In resentencing Ghazaoui I have given particular weight to the evidence of his good character relative to that of his co-offender Hawchar. In respect of both Hawchar and Ghazaoui, I have also taken into consideration the more serious offending of each of Betka, Ali and Moussa in accordance with parity principles. In resentencing Betka, I am concerned to ensure that his sentence, whilst still the most severe sentence imposed on all offenders involved in the money laundering scheme (being consistent with the senior role he performed and involving objectively more serious criminality for that reason), also reflects parity principles. I note that of the total sentence to be served by Betka following the sentence imposed by Harrison J has meant that the component which is attributable to his role in the money laundering scheme has proved to be extremely lenient.

83. In the calculation of each of the sentences of imprisonment, including in the case of Ghazaoui and Hawchar in the appointment of a reconnaissance release order under s 19AC of the Crimes Act (Cth) and in the case of Betka the appointment of a non-parole period under s 19AB, I take into account the negative impact of the COVID-19 pandemic on each of the applicants as prisoners serving sentences of imprisonment in the New South Wales correctional system. In doing so, I also acknowledge the measures taken by Corrective Services to avoid the risk of the virus entering Correctional centres. Although it is impossible to predict whether the restrictions which currently limit a prisoner’s access to family and friends will remain in place for the period during which each of the applicants will remain in custody before either being released under a reconnaissance release order in the case of Ghazaoui and Hawchar or being considered for release to parole in Betka’s case, I accept that during the balance of the sentence they are each to serve those restrictions are likely to be in place to some extent.

84. Having considered a range of sentencing alternatives, I am satisfied that no penalty other than sentences of imprisonment is appropriate. It will be obvious from the sentencing orders that I propose that the undiscounted sentence for each of the applicants differs from that of the sentencing judge.

85. After applying a 25% discount for the utilitarian value of each of the pleas of guilty and after allowing an additional 5% discount for the Betka’s assistance to the authorities and 10% for Hawchar’s assistance to the authorities, I propose the following orders.

1. The sentences imposed on each of the applicants in the District Court on 2 December 2019 are quashed.

2. In substitution the sentences imposed on each of the applicants are as follows:

Zouheir Ghazaoui

(i) Imprisonment for 2 years and 3 months to date from 2 December 2019.

(ii) In accordance with s 19AC of the Crimes Act 1914 (Cth), I make a recognizance release order of 1 year and 1 month. The effect of that order is that Ghazaoui will be released from custody on 1 January 2021.

Ahmed Hawchar

(i) Imprisonment for 2 years and 4 months to date from 2 December 2019.

(ii) In accordance with s 19AC of the Crimes Act 1914 (Cth), I make a recognizance release order of 1 year and 2 months. The effect of that order is that Hawchar will be released on 1 February 2021.

Bilal Betka

(i) Imprisonment for 6 years to date from 19 December 2017. After taking into account the sentence imposed by Harrison J on 20 February 2020, and having regard to the operation of ss 19AD and 19AG of the Crimes Act (Cth), a non-parole period of 3 years and 6 months is imposed, to expire on 18 June 2021.

86. WILSON J: I agree with Fullerton J.

87. IERACE J: I also agree with Fullerton J.

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Amendments

06 August 2020 - 6 August 2020 - Pursuant to the slip rule, the orders have been amended as set out in Betka v R; Ghazaoui v R; Hawchar v R (No 2) [2020] NSWCCA 199

15 June 2021 - Orders amended as set out in Betka v R; Ghazaoui v R; Hawchar v R (No 3) [2021] NSWCCA 121.

Decision last updated: 15 June 2021