Director of Public Prosecutions v S.M.
[2013] VCC 935
•26 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-02020
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| SEYED MOULANA (S.M.) |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17, 20, 21, 22, 23, 27, 28, 29, 30, 31 May 2013 | |
DATE OF SENTENCE: | 26 June 2013 | |
CASE MAY BE CITED AS: | DPP v. S.M. | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 935 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentencing
Catchwords: Money laundering - possession of money reasonably suspected of being drug trafficking - depositing cash into banks - large amounts - two counts over 7 weeks - sentence after trial.
Legislation Cited: Criminal Code (Cth) s.400.9
Cases Cited:
Sentence: TES 26 months, release on recognisance after serving 17 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Barry | DPP (Cth) |
| For the Accused | Mr A. Shwartz (plea only) | Jasons Lawyers (plea only) |
HIS HONOUR:
1 Seyed Moulana, you have been found guilty, after a trial, by a jury, of two counts, contrary to s.400.9 of the Criminal Code of the Commonwealth. The maximum penalty for the offence is two years' imprisonment and/or a fine of 50 penalty units.
2 I am required to sentence you in accordance with the jury verdict.
Circumstances of the offences
3 The circumstances of the offending emerged in the course of a ten or 12 day trial and I will not elaborate on them in any detail, and I incorporate by reference the Crown opening which the Crown, I am satisfied, fully proved before the jury. Essentially you were involved in part of an operation that has been described by European authorities as "cuckoo smurfing," which is money laundering technique that was being used.
4 The first count against you covers the period 28 April until 14 July 2008 and it effectively alleges that you were in possession of a total amount of money of $1,086,630, reasonably suspected as being the proceeds of drug trafficking. The case against you, as accepted by the jury, was that you collected this money and cash from a known associate of a drug dealer, Ms Ropa, in the City and you then proceeded to deposit it into a number of bank accounts over this period of about five weeks. That involved you in a total of 32 separate deposits over that period, in banks in both Melbourne and Sydney. You travelled to Sydney on two occasions in the course of executing that task of depositing the money and being in possession of the money that was reasonably suspected of being stolen.
5 The second count covers the period 30 July until 7 August '08 and involves the receipt by you of two separate consignments of drug money and you then proceeding to deposit that money by making 84 separate deposits, this time only in Victoria, of the money. That involved you, as I say, going to numerous branches of the ANZ, Commonwealth and Westpac Banks in the City and in Chadstone. You were also involved in a New South Wales branch in the second period, going to those banks with large volumes of cash and depositing into specific accounts pursuant to this "cuckoo smurfing" method.
6 Perhaps the most exceptional of the deposits was a deposit you made to the Westpac Bank in Chadstone, where you proceeded to enter that bank, put $350,000 in cash on the counter and asked the teller to accept that as a deposit, which went into a particular account on account of Crown Casino.
7 I also incorporate by reference the technique of "cuckoo surfing" which involves the laundering of drug money, wherein a person independent of the drug dealing, namely the launderer, comes into possession of the cash and then is also in possession of bank account numbers onshore, and deposits the money into bank account numbers on direction from principals overseas. Then at the end of that exercise the principals overseas are advised that the deposits have occurred.
8 You were involved in a number of different elements of the task of the "cuckoo smurfing" here. It involved you liaising with whoever was in possession of the drug money, which in this case appears to be Ms Ropa, who was living with Mr Barbaro, who was obviously involved in a major drug trafficking operation out of Little Palmerston Street, Carlton, arranging to liaise with her to pick up the cash in the City on these three separate occasions. Then, it is not clear how, but you also then received advice from someone as to depositing the money into various bank accounts. In your possession were found various SMS messages that had come from Hong Kong indicating where the money was to go. Your next task was to actually go to the various banks and make these deposits. That was your involvement in the first count.
9
In the second count there was an additional element of your conduct which
Mr Barry, the Crown Prosecutor in this matter, says was an additional element of seriousness, which was that you actually then advised the principals in Hong Kong that you had actually done the work involved. That involved you going to an Officeworks branch in Melbourne and faxing the deposit slips that you had that day deposited on behalf of the principals.
10 I incorporate, as I say, by reference to the Crown opening, which I am satisfied the Crown has proved. I also incorporate and will leave on the file the evidence matrix which went before the jury, which sets out the way the Crown sought to prove the case in relation to the case which involved both circumstantial evidence and direct evidence as to the observations of a big team of detectives seeing you pick up the money from Ms Ropa on three occasions and then going to the various banks and depositing them.
11 Part of your modus operandi involved you being well dressed in a suit, like a businessman, with an attaché case going to the bank tellers, calling yourself Sam and depositing these huge amounts of money. You were able to achieve this because at that stage under the cash transactions legislation people depositing cash in amounts above $10,000 were not required to produce any identification. You were giving a mobile phone number on the various deposit slips that were found in your possession.
12
The police had obviously been involved in a large scale surveillance of Mr Barbaro, the drug dealer and they executed a search warrant on his property and on your premises where you were living in Browns Road, Clayton, on
8 August 2008. You were arrested and the various deposit slips, or the various accounts that you had been putting money into were found, as well as Sim cards, a computer tower, mobile phones, and it was from that material that the Crown were able to piece together its circumstantial case against you that you were in fact involved in this "cuckoo smurfing" operation.
13 When the police raided your house, you had a business van there. You were involved in the security business and you told the police both at the time and in the record of interview that you were a technician and you were involved in a business called Force Security, installing security systems. You also told them a number of lies about not having a mobile phone and that the deposit slips that you had involved deposits to your businesses or from business customers. That was obviously not true. The scale of the action that has been found by the jury against you was quite significant, as I say, involving some 32 deposits on the first count, 84 deposits on the second count, and in relation to the second count an amount of some $3,222,955.
14 The matter came on for trial and you pleaded not guilty. In your opening speech to the jury you said that in fact you were involved in a money remitting business and there was $1.5 million that had come into Australia and was to be deposited to various accounts. That was put by you in your opening address to the jury. At the end of the trial you were invited to call evidence to support your defence and you chose not to call any evidence.
15 In your opening address to the jury you in fact said that after you had been arrested you discussed the matter with your wife and agreed to go to the AFP and provide them with the names of the person that you had been receiving the money from a Mr Mustafa, and you did go to the police and gave them that information, but the matter was not taken any further by the police as they wanted a full admission by you, or full statement by you which you declined to provide.
16 In the course of the trial, you did not substantively question many of the witnesses. You maintained to me you were requiring the Crown to prove their case. You did question some of the surveillance witnesses, but at no time, except at one particular point did you even concede that you were the person who was collecting the money and then depositing it at the various branches, despite the overwhelming circumstantial and direct evidence case against you. There may have been a concession that you were outside the Marriott Hotel on one of the occasions of the surveillance.
Assessing your culpability
17 The Crown case here was an overwhelming case, consisting of both direct and circumstantial evidence. Assessing your state of mind is difficult given the lies you told to the police in your interview and your failure to adduce evidence in the trial.
18 Mr Shwartz, who appeared for you on the plea, sought to submit that your conduct in contesting the case and alleging a conspiracy by your lawyers, was in the context of depressive illness, showed that you were essentially in an irrational state. He sought on that basis a reduction in your moral culpability. He referred the Court to the case of Tran wherein Maxwell P said that there can be a reduction in moral culpability if there is some relationship between the offending and the mental state.
19 Mr Barry contested the proposition that there was any inference available to submit that your conduct in engaging in the "cuckoo smurfing" activity and then your conduct right up until the present time showed any form of irrationality, rather he put that it showed a systemic course of conduct.
20 Mr Shwartz also relied on the evidence and the report of Dr Navaratnam, a psychiatrist, who is treating you who has diagnosed you as having bipolar depressive disorder. He gave evidence on the plea but when he gave that evidence he had not seen you for the first time until three years after the event and was unable to "chance his arm" as to whether or not the depressive illness that he diagnosed in fact was applicable at the time.
21 Mr Shwartz then relied also on evidence from your wife who gave evidence that in a sense you were at that time when you were living with your wife, you were disengaged and in a sense irrational, but I do not accept that that evidence supports the proposition that your conduct was the conduct of an irrational person. Also part of the plea and part of the evidence from your wife were issues as to the civil war in Sri Lanka and the fact that you came from an area that has been engaged in civil war. Although you have been accepted as a refugee into Australia, you did not mention to Dr Navaratnam any issues of involvement in the civil war while you in Sri Lanka, as giving rise to any mental state or concern. Rather, when you saw him, you attributed your state to problems with your wife and family.
22 Your wife, as I say, gave evidence that you have three children. The two of you came here in late '95 when you were married and you worked as a cleaner and you then started your own security business. When you left Sri Lanka, part of the reason you left is you had gone bankrupt because of an inability to collect moneys owed to the business, due to the terrorism events that were occurring at that time. You then were involved in a security business here in Australia and, according to her, you had been involved with another business partner and he basically stripped the business, taken the clients from you and at the time of the offending the business effectively was not operating properly, and you were broke and there was not much money in the house. As I say, when you were arrested, there was a business van there at the location.
23 Having considered what your wife has said about your business activities, while I accept that you may have been unsuccessful in business at that time, I do not accept, on the basis of either the evidence of your wife combined with the evidence of Dr Navaratnam, combined with your conduct post the arrest, that it amounts to any basis to reduce your moral culpability for your offending over that seven week period covered by the two counts.
24 As Mr Barry said, this was a systemic systematic operation by you. You were acting almost in an executive capacity, where you received the orders, delivered the money and then in the second count advised the principals that you had in fact undertaken that task.
25
Your wife did give evidence that she had been introduced to a person,
Mr Mustafa, and given him a meal at the home, but she was unable to give any further details of his involvement with you and she was unaware of your activities in depositing money, although she conceded that she had been to Sydney with you a couple of times. She conceded that there were problems in the marriage and said also that at times you were not concentrating and neglecting the children and also that her brush with being diagnosed breast cancer also had an impact on you.
26 On the plea, you also led evidence from a person that you had met at a local mosque and he gave evidence that he had assisted you and you actually attempted to set up a business together. That did not get anywhere, but also his assessment was that you were a gullible type of person and this again was put by Mr Shwartz on your behalf, that that supported the proposition that you were somehow or other inveigled in as a gullible person into this cog in the wheel of a drug dealing empire and money laundering.
27 I heard the evidence of the witness that you have led, but again I do not accept, having had a chance to look at your involvement, the effectively 112 different transactions over that period, and the businessman like way in which you comported yourself in handing the money to the tellers. I do not accept that these were the actions of an irrational person.
28 You may have come from a war torn country but, as I said, you did not refer to that to Dr Navaratnam and you conduct in engaging in a systematic conduct over this six or seven week period is inconsistent with the proposition that there should be a reduction in moral culpability. Rather, it is consistent with the conclusion of Dr Mullen, psychiatrist, who had assessed you in July last year as being "Mr Moulana is a man of good intelligence and was well able to understand the nature of the charges against him and his rights in the trial. There was nothing to suggest that he had any deficits which would impair his fitness to plead." That was in the context of a possible fitness to plea issue, but his assessment of your intelligence is in fact consistent with your systematic conduct over that six week period of the two charges.
29 Mr Shwartz submitted that in this case on the plea that there was no evidence of betterment and, indeed, when the police raided your house, there was no evidence of luxury living or anything like that and your wife gave evidence to that effect that there was not a lot of money in the house.
30 Mr Barry, on the other hand, submitted that the inference to be drawn is that you were not engaging in this conduct for nothing and, indeed, in your opening address to the jury, you said that you expected to be paid $300 a week. The fact that there was no evidence of betterment does not necessarily lead to the conclusion that you were not to be paid, and given your systemic activity the inference that is fairly availably drawn is you would have been paid at some stage. It may well be that just because the operation was closed down on 8 August '08, there was no opportunity for you to be paid before the operation was closed down.
31 It follows from what I have just referred to that given the amount of money involved, the number of individual transactions and, in Count 2, your reporting to principals overseas of your deposits, that this is a serious example of the offences, with Count 2 being more serious. I accept that this is a course of conduct in that the technique is the same, but as the Crown submitted there was a seven day gap, but this involves a series of separate transactions over that whole period which, as I say, come to a total of about 112 transactions.
32 In assessing the seriousness of the offence, I am required under the Court of Appeal authority of Najeed to consider your involvement, your role in the particular transaction and whether you are the author or the instigator. Clearly you were not the author or instigator and you did not have a degree of authority in relation to the matter, however you undertook the precise actions that had been required of you, of your principal, or of the person who was providing the information to you. You did that systematically over the period covered by the counts, there were a number of transactions involved and there was a high amount of money involved. Looking at paragraph 37 of Najeed, although this offence sits at the bottom of the hierarchy of offences within the money laundering section of the code, your involvement in this was at a high level and I find it is a high level of moral culpability.
33 Overall, these two offences, although they do involve the same technique over the two periods involved, they are separate offences with a high degree of moral culpability and serious examples of the offence.
34 I accept the submission of Mr Shwartz that this is an absolute liability offence, however given the circumstances, the large amounts of money involved, the irregular nature of the conduct, it must have been bleedingly obvious to you that this was money that was the proceeds of drug trafficking, even though there was no suggestion that you were involved in drug trafficking and no drug paraphernalia or anything like that was found at your house when you were raided by the police.
Matters in mitigation
35 I turn now to matters in mitigation that emerged in the course of the plea. You are aged 44. You are married to your first cousin who has been in Court supporting you for most of the trial and on the plea and she gave evidence in support of that. Your personal circumstances emerged in the course of submissions from the Bar table and also in her evidence. You came from that area of Sri Lanka that has been involved in the civil war and your father was in business and you had to move from that particular rural location down to Columbo to run a jewellery business. You were involved at a young age, or after you left school, in your own business and that, as I say, just around the time in the early 1990's ran into financial difficulties when you could not collect money due to the people that were involved with the Tamil Tigers. You then, because of your father's involvement with the government were under the threat of retaliation from the Tamil Tigers and that led you and your wife, who you married in about 1995, to come to Australia and you, after a long period, have been able to achieve permanent residency status in Australia as refugees.
36 You have three children and your wife indicated that when she had to go to hospital for the breast cancer, you were able to look after those children. Your marriage has had some difficulties and there have been periods of separation. You were living with your wife in '08 when the police raided, but subsequent to that you have separated and the last period of separation occurred on about 12 September last year, but your wife has been prepared to come back and support you in the course of the trial.
37 A principal matter that was put in mitigation was your mental state. As I say, Dr Navaratnam, has been treating you for depression on the referral of your general practitioner. I have considered and taken into account the report of Dr Natasam who indicates that you are suffering depression and bipolar depression and have been referred to Dr Navaratnam and, as I say, he indicates that his assessment of you was bipolar depression. In addition to that, you do suffer at some stages, it is unclear, at some stage you were a drug user, and as a result of that you have contracted hepatitis C and that is something that has required you needing treatment for that disease.
38 Also in evidence was an admission that you had to the psychiatric section of the Dandenong Hospital for a period of about three weeks in March and early April 2012. You gave a history that you had been feeling low for the previous two years and they described you as having complex psychosocial circumstances which involved problems with your family, your wife and also the sequelae of these offences. Dr Navaratnam indicated that you in fact had not told him about these offences that you faced until after this period of admission to hospital.
39 Your wife gave evidence as to your business and employment activities in Australia and clearly once you came to Australia you worked as a cleaner and you have been able to, as I say, establish a business, but unfortunately, as Mr Barry said, that there was no evidence to this effect. It was clear from the evidence of your wife that you were not making a lot of money in whatever business you were involved in, either before or subsequent to this offending and that, again, it leads to an inference that the reason why you were engaged in this offending was in fact for financial reasons.
40 It is clear that in the period that you have been in Australia, from a number of references that were provided, that you have been actively involved in your community and there is a series of good references from Asylum Seeker Project, from a business that you worked for six years as a machine operator, dated 25 October 2002. Also the Sri Lankan Muslim Association, you have been members of that up until 2002 and they give you a good reference. So you have been involved in the community. You come before the Court with nothing alleged against you, but you are facing these two very serious charges.
41 I have taken into account all the matters put on your behalf by Mr Shwartz, even though I may not have referred to all of them, and I have also taken into account the cases that have been referred to and I need to consider sentencing considerations.
Sentencing purposes
42 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into the community.
43 In this case I am required under the Crimes Act to take into account the matters in s.16A and I do take them into account.
44 Mr Barry submitted that general deterrence is a very important sentencing consideration in offences like this, and he is clearly right on that and it is supported by the case of Nageed. As the Court of Appeal said in Nageed at paragraph 39:
"Fourthly, money laundering, particularly of the nature and scale involved in this case is vital to the functioning of organised criminal syndicates and in particular drug trafficking syndicates. In such cases a necessary part of the criminal activities of those syndicates and the money launderer is an important cog in the wheel of organised crime. Accordingly, the offence of money laundering, particularly of the type and dimension which was involved in this case is an offence in respect of which the principle of general deterrence is given significant weight."
45 Then there is a reference to a New South Wales case, where the Court of Appeal of New South Wales says:
"Money laundering on the scale of which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. While the activities engaged in for profit over a significant period of time and with a large number of transactions the good character of the offender is of less significance than might otherwise be the case."
46 Those sentiments apply in this case. You are of prior good character, however you were involved in this for a period of some seven weeks, a number of transactions, interstate trips and a large volume of money, nearly over $4 million in total, that is a lot of money, and so it goes to the gravity of the offence.
47 Specific deterrence is a factor in this case, given that you pleaded not guilty. There is no evidence before me of remorse or self awareness that what you were doing was wrong.
48 An importance consideration in this case that I do take into account is the delay. Mr Barry conceded there had been some delay through no fault of your own, just the sheer size of the Barbaro syndicate. It required a significant period of time before the matter got to committal and then trial and then the first trial was aborted, then there was a second trial that required an assessment of your fitness to plead, so the period to date, which is near five years since you were arrested, is longer than most cases and that is a factor that I am entitled and required to take into account in your favour as a matter of fairness to you.
49 Also I take into account your psychiatric state. You are suffering from bipolar depression, you are under medication according to Dr Navaratnam and that is a factor that leads to some moderation in the issue of general deterrence. I do not accept there is any moderation in terms of moral culpability under the first principle of Verdins but under later principles of Verdins, then suffering of a serious mental condition that makes prison more onerous and also requires some moderation of the issue of general deterrence and I do take that into account.
50 The Crown submitted that this offending was serious at, effectively, the highest end of offending for this type of offence and sought 100% cumulation of a sentence on each of the two counts. The Crown also submitted to me two charts of comparable offences both in relation to people who were involved in the same money laundering, when laundering money from the Barbaro syndicate as well as a number of sentences from generally the New South Wales District Court of money laundering cases.
51 It has been said on a lot of occasions that comparable cases are not of great assistance. Each case is to be dealt with on its own merits. The distinguishing feature in relation to all the other cases that were put before me by Mr Barry is that all the other cases involved pleas of guilty whereas your case involved a plea of not guilty. So you do not get the leniency that has obviously been accorded to other offenders who have pleaded guilty. It is not clear in relation to the other cases whether there is the same period of delay that arises in this case.
52 I have taken those cases into account as providing some sort of benchmark or yardstick in relation to the general sentencing practices for this offence in interstate courts and that is a matter to consider given that we are dealing with a Commonwealth offence.
53 Putting all those matters together, I assess your prospects of rehabilitation as reasonable. You have participated in the community. You have worked, you have had businesses, there are good references for you, you are gullible according to the witness that you have called. So the prospects of rehabilitation are reasonable. That is a factor I take into account.
54 In sentencing you general deterrence is to be the most significant consideration. Specific deterrence is some factor, given the plea of not guilty. Denunciation is an important consideration. Your conduct in engaging in laundering of over $4 million over a six or seven week period is to be totally condemned. You were a cog in a big drug syndicate.
55 I also must into account the consideration of parsimony. The Crimes Act says that a sentence of imprisonment must be a sentence of last resort. Also considerations of totality and I do not accept the submission by the Crown that there should be 100% cumulation in relation to the two offences. But I do accept the submissions of the Crown that these two examples are serious examples of the offences. I have moderated the sentence on the basis of the delay and also your present mental condition of suffering from bipolar depression.
Sentence
56 The sentence of the Court is as follows: on Count 1 you are sentenced to 14 months imprisonment. On Count 2 you are sentenced to 16 months imprisonment. I direct that the sentence on Count 1 commence immediately and the sentence on Count 2 commence 10 months from this day, making a total effective sentence of 26 months imprisonment. I direct that you be released on a $1000 recognisance after you have served 17 months imprisonment. I declare that you have served 22 days pre-sentence detention.
57 I am required to explain the sentence of the Court to you and I will do it now. I have sentenced you to 14 months imprisonment on the first count and 16 months' imprisonment on the second count. The sentence on the second count starts after you have served ten months on the first count. Which means that the total sentence is 26 months from today.
58 Once you have served 17 months, provided you are prepared to sign the document which is an agreement that you will be of good behaviour for a period of the next nine months after the 17 months, which means after you are released, for the next nine months if you commit a further offence you will breach this agreement. You do not have to put up the $1000 but you will forfeit the $1000 and then you may be re-sentenced for the breach, and I have declared you have served 22 days excluding today.
59 I will have the document prepared, I will ask for it to be signed, Mr Barry can check it, Mr Schwartz can discuss it with or explain it again to the prisoner.
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