Director of Public Prosecutions v Lebdeh
[2018] VCC 1913
•1 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01011
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GHASSAN LEBDEH |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September and 18 October 2018 | |
DATE OF SENTENCE: | 1 November 2018 | |
CASE MAY BE CITED AS: | DPP v Lebdeh | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1913 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Criminal law sentencing – one charge of deal with property reasonably suspected of being proceeds of crime
Legislation Cited: Section 400.9(1) of the Criminal Code (Cth); Crimes Act 1914 (Cth)
Cases Cited: Kim and Fang v R [2016] VSCA 238
Sentence: Convicted and sentenced to six months’ imprisonment to commence 1 November 2018 to be released forthwith upon Mr Lebdeh entering into a Recognisance Release Order in the sum of $1,000 without security on condition that he be of good behaviour for one year.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Avis with Ms J MacKay | Office of the Commonwealth DPP (Melbourne) |
| For the Accused | Ms L Ristivojevic | TT Law Group |
HER HONOUR:
1 Ghassan Lebdeh, you have pleaded guilty to one charge of dealing with money reasonably suspected of being the proceeds of crime, namely $144,950, contrary to s400.9(1) of the Criminal Code (Cth).
2 The office is serious and that is reflected in the maximum penalty that is set down by Parliament for this offence and that is three years’ imprisonment and/or a fine of 180 penalty units ($30,600).
3 The circumstances of your offending were read out by the prosecutor at the plea hearing and I will proceed to sentence you on the basis of the facts set out in the prosecution opening which is marked Exhibit A.
4 Your offending was uncovered as a result of a 2014 operation conducted by the Australian Crime Commission and the Australian Federal Police. Your brother, Hassan Taiba, was a person of interest in the operation.
5 On 25 August 2014, police lawfully intercepted a telephone call where you received a call from a male caller using a mobile phone that was registered to Lauren Wilson. Lauren Wilson is the partner of your brother, Hassan Taiba. The male caller said to you, “Your sister wants the key. Can you go and drop the key off for her?”
6 Later, you called the same mobile and asked, “Still want me to drop the key off?” The male recipient of the call replied, “Yeah, can you come now?” You said “All right, I’ll come and I’ll get the key off you”, and the male recipient replied “Yeah, I’m at Lauren’s”.
7 On the same day, at about 6.34pm, a Holden Jackaroo was observed arriving at an address at 20 Lauriston Way, Sunbury. A male got out of the vehicle and walked towards the house. At 6.42pm, the male was seen walking away from the house towards the Holden Jackaroo. At about 7.00pm, Victorian police officers intercepted the Holden Jackaroo in Greenvale. You were the only occupant of the vehicle. When they searched the vehicle, there was a shoe box in a bag, in the front passenger seat foot-well. You were asked by the police about the bag. You told them the bag contained money, $145,000 and that you had the money in your car because you had sold your house and you had been saving the money and that the money was in 50s.
8 Later you participated in a recorded interview with police, where you agreed that you had either $144,000 or $145,000 cash in the car, and that you had told the officers during the intercept that it was your money. Subsequent counting of the money by police confirmed that there was $144,950 cash in both $50 and $100 denominations.
9 At about 9.00pm, you called the mobile phone registered in the name of Lauren Wilson. You said to the male recipient of the call, “Brother, the police arrested me, I’m at the police station.” The male answered, “Why?”, and you said “Because they said I have money and I shouldn’t have money.” The male asked you, “What did they say to you?” You replied, “I told them I want to go to Lebanon with my wife and children. What should I do?” to which the male responded, “Make no comment, all right?”
10 The basis of the laying of the charges is that it is reasonable to suspect that the money dealt with by you is proceeds of crime because the value of the money is grossly out of proportion to your income and expenditure over a reasonable period of time within which the conduct occurred.
11 Approximately 20 years ago, you suffered a serious work injury following which you have not worked and you have been in receipt of Centrelink Disability Support Pension.
12 Between 2012 and 2015, you did not submit an income tax return, and only earnt $4.42 in interest income from a Westpac Bank account. You received a modest sum by way of Centrelink benefits over that period.
13 You admitted your prior criminal record following your arraignment. You have no relevant criminal history. There are convictions recorded for recklessly causing injury on 22 August 2014 at Broadmeadows Magistrates’ Court, and a conviction, a subsequent conviction for contravention of a Family Violence Interim Intervention Order recorded in 2015.
14 There was a delay in the laying of charges. You were not charged until 12 August 2015.
15 The explanation given for that delay was that your charge was being further investigated as it was part of a related investigation concerning your brother, Hassan Taiba, and another person, Ali Behsudi.
16 Initially, your matter proceeded together with the matters associated with Hassan Taiba and Ali Behsudi. However, after the contested committal hearing, it was agreed that the three matters would proceed independently and the hearing was on 22 to 23 May 2017.
17 There was a further delay between the laying of the charge and the committal for trial due to problems with not having an appropriate interpreter on one occasion, and some disclosure material not having been exchanged.
18 Following your committal for trial on 23 May 2017, the matter was then listed the following day in the Melbourne County Court on 24 May 2017 and a trial date was given of 12 February 2018.
19 After that date, there were various mentions in respect to funding. In January 2017, your legal advisers became concerned about your fitness to plead. The trial date was vacated and Dr Lester Walton, psychiatrist, was asked to review you in respect to whether you were fit, and eventually he provided a report.
20 His report of 14 March 2018 noted his diagnosis adjustment disorder with mixed anxiety and depression, which he associated with the past work injury, and more recently with the turmoil associated with the breakdown of your marriage. He confirmed that a defence of mental impairment was not available, and confirmed that you were fit to be tried.
21 Your matter then resolved and was adjourned for arraignment on 13 April 2018. You entered a plea of guilty on that date. Your matter was then listed for a plea hearing on 4 September 2018. On that date, your matter was adjourned to enable a supplementary report to be requested from Dr Walton and that was to address what is known as the Verdins principles. Your plea hearing ultimately concluded on 18 October 2018 on receipt of that report.
22 There is a context to this offending and that is, in the latter part of 2014, your second marriage began to flounder and there were significant issues that arose as a consequence. Your wife left the family home with the four children of your marriage, one of whom has a severe learning disability.
23 Up until then you shared primary care of those children and you were very much involved in their lives. On 22 August 2018, at Broadmeadows Magistrates’ Court you were convicted and fined in respect to a charge of recklessly causing injury and that related to an assault on your estranged wife.
24 Thereafter, a series of Family Violence Intervention Orders were obtained. On 30 October 2015, you were dealt with for a contravention of a Family Violence Intervention Order. A fine was imposed together with a Community Correction Order for one year. That order was appealed to the County Court. The appeal was allowed, and a new order was made and you were convicted and fined $500 only.
25 Your wife then left the family home. She entered supported accommodation with the four children and eventually they have permanently relocated. You have not reconciled and have been estranged from your wife and family ever since.
26 I accept that 2014 was a period of great upheaval for you and provided you with some very challenging times following the breakdown of your second marriage. The explanation you gave for your involvement in this offending was that you were asked by your brother, Hassan Taiba to come and collect the money and he said that you were to hold the money for him. You said you were given the money that afternoon and that you were aware of the amount involved.
27 Your understanding was your brother would retrieve the money at a later stage. You state this was the first time on which you had been asked to do such a task on behalf of your brother. You understood there was a significant sum in the box. You accept that you lied to police about where the money was from when they first intercepted your vehicle. Your explanation for the lie was that you simply panicked.
28 After your arrest, there were some interventions made on behalf of Hassan Taiba to establish that the source of the money was legitimate. Documentation relating to his TAB gambling accounts were then provided to police. Following forensic examination it was confirmed that the documentation did not establish that the monies were shown to be from legitimate purposes, so that after that investigation was completed, you were formally charged.
29 You now accept that the monies held by you were reasonably likely to be the proceeds of crime and entered a plea accordingly.
30 Hassan Taiba, your brother was not charged in relation to this money. He was dealt with in respect to a like charge and sentence by His Honour Judge Smith on 21 September 2018.
31 He was convicted and sentenced to a three year Community Correction Order with special conditions. The judge in his case accepted there were exceptional circumstances having regard to the combination of personal factors that are set out in the sentencing remarks.
32 Hassan Taiba gave a third man, Ali Behsudi, a bag containing $150,000. Mr Behsudi was charged with the same offence as you and he was dealt with by Her Honour Judge Cannon.
33 On 19 December 2017, he was sentenced in respect to two charges of dealing with a sum of money less than $100,000, where it was reasonable to suspect such money was proceeds of crime, and one charge of dealing with a sum of money more than $100,000, in similar circumstances. He gave an undertaking to give evidence against Hassan Taiba, he cooperated with police at a high level, and entered an early plea of guilty.
34 He was otherwise of good character. He had no prior criminal history and excellent prospects of rehabilitation. The judge in his case took into account his difficult personal circumstances and he was sentenced to an aggregate sentence of imprisonment of 12 months, but was released forthwith on a Recognisance Release Order in the sum of $2,000 to be of good behaviour for three years.
35 There is no evidence linking your offending to the offences that concerned your brother, Hassan Taiba, and Ali Behsudi.
36 I have had regard to your personal history and circumstances. You were born in Tripoli, Lebanon. Tragically, your father died when you were only aged four months. Your mother re-partnered and remarried and you, your mother and step-father came to Australia when you were about eight. You were only at school for a relatively short time in Australia and you left school early to commence working in a textile factory.
37 You married and your first marriage lasted 15 years. There are three children from that marriage, all of whom live in Sydney. You maintain your relationship with those children. You married a second wife and I have already referred in detail to the nature of that relationship and its' breakdown.
38 Your mother remarried. Your mother died approximately eight to nine years ago. You continue to have a good relationship with your step-father who is now aged 89 and is cared for by one of your sisters. You are a member of a large and extensive family, and you have good relationships with other family members.
39 As I earlier indicated, you injured yourself at work when you were approximately 21 and the injuries include the physical injury to your shoulders, back and elbow. The right elbow required a reconstruction. You no longer have full extension of that elbow and you suffer joint pain. You have not worked since.
40 You have a diagnosis for adjustment disorder with mixed anxiety and depression. Dr Habib, general practitioner, treats you in respect to chronic pain and anxiety. He prescribes anti-depressant medication. You are reluctant to take that medication and are non-compliant.
41 In August 2017, you suffered further injuries as a consequence of a transport accident. Dr Sarah Fratti, a neuro-psychologist, examined you but was not able to determine whether your complaints of difficulties you experience known as cognitive deficits after the transport accident, were indicative of an acquired brain injury. You have ongoing chronic pain.
42 Currently, you live alone in Broadmeadows at your rental property. You have been living there for many years.
43 I have had regard to the matters set out in Dr Fratti's report, about her assessment of you. She assessed your abilities falling within the low average to average range and your tasks showed performances between the borderline and extremely low range of functioning. She had difficulties checking the validity of the results because of difficulties that she experienced administering the tests and overall, she could not comment on your cognitive abilities or the extent of potential impairment. She considered that your stress and anxiety levels, which she noted were elevated, may have played a role in those results, but she also noted that you have a preference to use Lebanese when dealing with complex matters and that is legitimate given that you came to Australia at an age where your language would have been well established in Lebanese rather than English.
44 Dr Lester Walton, in his recent report of 11 September 2018, confirms his diagnosis of adjustment disorder with stress and anxiety related to the significant physical injuries you suffered at work with chronic pain and associated mood disturbance. He said that it is relatively mild, that disorder, but serious in a sense it is an injury condition with the spectrum of psychiatric conditions and he believes there is a reasonable proposition that there is at least some nexus between your disturbed mental state and your seemingly out-of-character offending. He said further your condition may be aggravated by gaol and that it would be very difficult for you in gaol because of your condition.
45 The Crown accepted that the principles of Verdins, as outlined in limbs 4, 5 and 6, were applicable, and it was a matter for the Court to give consideration as to what weight ought to be applied in assessing the effect of your diagnosed psychiatric condition.
46 Overall, given your chronic adjustment disorder, I do consider your judgment was impaired to an extent by reason of your condition and it explains in part why it was that you offended in this manner. I have also had regard to the findings of Dr Fratti who noted that your intellectual abilities fell to the low average to average range and consider that your situation was such that you were open to being exploited by your brother in these circumstances. I consider that therefore whilst there is a need for general and specific deterrence to be emphasised, it must be sensibly moderated in your situation.
47 I have had regard to the matters set out in s16A(2) of the Crimes Act, as far as they are known. Importantly, s17A(1) provides a court shall not impose a sentence of imprisonment for a federal offence unless, having considered all other available sentences, the court is satisfied no other sentence is appropriate in the circumstances.
48 I have had regard to the objective features of your offending and the maximum penalty. This type of offence is serious and that has been acknowledged through the Parliament making legislation that prohibits money laundering, because money laundering is an activity that plays a crucial role in facilitating other crimes.
49 I have had regard to the principles set out in Kim v R, Fang v R[1] in particular the principles relating to sentencing for money laundering offences under the code.
[1][2016] VSCA 238
50 As was discussed during the plea hearing, I do not consider your offence falls at the top end of the range for this sorts of offending, rather, it falls at the lower spectrum for this type of offending, and I make that finding having regard to the fact that your involvement was for the one day only for a very short period of time.
51 Further, you were not the person who was the instigator of the crime; rather, you acted at the behest of your brother. I am further satisfied that there was a context of your offending and also your chronic adjustment disorder did have play a role in you not exercising proper judgment when asked by your brother to undertake this task.
52 There is no evidence of any financial gain on your part for participation in this offending. Nonetheless, in sentencing, general deterrence is of significant weight, and as I have already indicated, in your case it has been moderated to an extent.
53 I have had regard to the amount of money involved and the fact it was a one transaction only and was isolated offending. I am satisfied that you were not aware and did not know the precise means by which the moneys came into your brother's possession.
54 Having regard to all the mitigatory factors that were highlighted, you have pleaded guilty. That plea has real utility. It spares the Crown the unnecessary expensive and inconvenience of conducting a trial and indicates a willingness by you to facilitate the course of justice, and your sentence will be discounted accordingly.
55 Your case did have some complexity given the initial inter-connection between your matter and those of Hassan Taiba and Ali Behsudi, which meant that there was a delay in resolving your matter.
56 Furthermore, your medical conditions and the issue of fitness to be tried complicated your matter again and led to further delay. It is of interest and noted that during the entire period you have not re-offended.
57 I accept by reason of your experience following the laying of this charge, that you have learnt your lesson and you are unlikely to reoffend in the future. You are a now 58 but you were 53 at the time of the offending. Your criminal record holds nothing of particular relevance and you are entitled to have taken into account in your favour that you have a very limited criminal history up until these events. Overall, I consider you do have good prospects of rehabilitation.
58 I must impose adequate punishment and on behalf of the community, formally condemn your behaviour.
59 There will a Forfeiture Order in the sum of $144,950, pursuant to s48(2) of the Proceeds of Crime Act 2002 (Cth), as that has been consented to by your counsel.
60 Your barrister, Ms Ristivojevic submitted in all the circumstances that an appropriate sentence would be a Recognisance Release Order, s.19AC of the Crimes Act (Cth) and she made submissions that the case that is sought to be relied upon by the prosecution can be distinguished from yours and that your particular circumstances mean that an immediate term of imprisonment is not warranted.
61 Ms Avis on behalf of the Director submitted that a term of immediate imprisonment is the only appropriate sentence given the relative objective seriousness of the offending, the importance of general deterrence and the need to denounce your behaviour.
62 I have regard to the various cases that were provided to me. None of them are on all fours and they do not provide any precedent value. They are merely of guidance only.
63 Ultimately, I consider that the appropriate disposition is that there will be a short term of imprisonment imposed, but you will released immediately after entering what is called a Recognisance release Order.
64 I will make the formal orders-:
65 In respect to the one charge, you will be convicted and sentenced to six months’ imprisonment to commence on today's date, 1 November 2018, to be released forthwith upon you entering into a Recognisance Release Order in the sum of $1,000 without security, on condition that you be of good behaviour for one year.
66 If you fail to comply with the order without reasonable excuse, you will forfeit the $1,000 that I have nominated as being the Recognisance and you will be brought back to the court for resentencing, and there is a likelihood that you would have to serve your sentence.
67 I am required to explain what this all means to you. What this means is that if you sign the document, which is called a Recognisance Release Order, you do not have to go to prison and you do not have to pay the $1,000 immediately. You are agreeing to be of good behaviour for one year.
68 ACCUSED: (Indistinct).
69 HER HONOUR: Can you explain he is not going to prison?
70 MS RISTIVOJEVIC: May I approach for one moment, Your Honour.
71 HER HONOUR: Yes.
72 MS RISTIVOJEVIC: Thank you.
73 HER HONOUR: Okay, so he has just got to agree to be of good behaviour for one year. Please explain that to him. He is not allowed to get charged with any offences for one year. He is not allowed to commit any offences for one year.
74 ACCUSED: Upset.
75 INTERPRETER: I am sorry Your Honour.
76 MS RISTIVOJEVIC: May I approach Your Honour.
77 HER HONOUR: No.
78 INTERPRETER: He hasn't done anything, Your Honour.
79 HER HONOUR: (Addressing the interpreter) Yes, that's okay. He has entered a plea of guilty in respect to this charge and I am saying to him he has been convicted and he will be sentenced to six months' but he is released immediately as long as he signs this document called the Recognisance Release Order, that he be of good behaviour for one year. In the event that he breaches that condition by committing a further offence, he would have to pay the $1000 and he would then have to come before the court and he may be required to serve the six months' imprisonment.
80 Have you got the Recognisance Release Order there? If you can produce that for me, I will sign it and I will get Ms Ristivojevic to go through it with her client.
81 MS RISTIVOJEVIC: Yes, Your Honour.
82 HER HONOUR: I will just step off the Bench while you have that discussion with the aid of the interpreter.
83 MS RISTIVOJEVIC: Yes, Your Honour, thank you.
84 (Short adjournment.)
85 HER HONOUR: All right, I understand that Mr Lebdeh now understands the order that I have made and he has signed the Recognisance Release Order.
86 MS RISTIVOJEVIC: Yes, Your Honour. It has been read to him by the interpreter.
87 HER HONOUR: Good. No, it is confusing to some people and they get a bit of a shock.
88 MS RISTIVOJEVIC: I know, sometimes they, yes, they hear the six months' gaol.
89 HER HONOUR: Imprisonment.
90 MS RISTIVOJEVIC: And then they don't hear anything else after that.
91 HER HONOUR: And does he understand that in the event he breaches, he would have to come back?
92 MS RISTIVOJEVIC: I explained that to him and he's at risk of - - -
93 HER HONOUR: And be dealt with by the court, and also would forfeit the $1000.
94 MS RISTIVOJEVIC: Yes.
95 HER HONOUR: Yes, and he may be required to serve the six months' sentence.
96 MS RISTIVOJEVIC: Yes.
97 HER HONOUR: All right. The only other thing I am required to inform your client is that he can apply to vary or discharge the Recognisance Release Order.
98 All right, just to finish off my formal sentencing remarks.
99 I make the following s6AAA declaration but for your plea of guilty I would have imposed a sentence of 12 months’ imprisonment.
100 I make the Forfeiture Order sought. I note that the parties have provided a consent to the Forfeiture Order being made and the appropriate application was before the court. That concludes my sentencing remarks.
101 MS RISTIVOJEVIC: As Your Honour pleases.
102 HER HONOUR: Thank you Ms Ristivojevic. I understand you have been looking after Mr Lebdeh for a long time.
103 MS RISTIVOJEVIC: Yes.
104 HER HONOUR: It is really important that there is that continuity in a situation such as this, where your client does appear to have severe issues in relation to coping and stress.
105 MS RISTIVOJEVIC: Yes.
106 HER HONOUR: I appreciate you have been with him all the way.
107 MS RISTIVOJEVIC: Yes, and my instructor and I have done our best to navigate him through as best as we can.
108 HER HONOUR: Yes.
109 MS RISTIVOJEVIC: And yes, we can see he does get quite distressed at times.
110 HER HONOUR: Absolutely, and it is genuine.
111 MS RISTIVOJEVIC: Yes.
112 HER HONOUR: I can understand that, but I do appreciate - sometimes you know, there are very challenging situations that you have to deal with as a lawyer that, you know, sometimes it is a difficult situation, but you have handled yourself very well.
113 MS RISTIVOJEVIC: Thank Your Honour.
114 HER HONOUR: And thank Ms MacKay. We can adjourn.
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