Director of Public Prosecutions v Taiba

[2018] VCC 1560

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01012

DIRECTOR OF PUBLIC PROSECUTIONS

v

HASSAN TAIBA

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Taiba
MEDIUM NEUTRAL CITATION:	[2018] VCC 1560

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCE
Catchwords:              Deal with property reasonably suspected of being proceeds of crime.

Legislation Cited:     Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic).

Cases Cited:Kim & Fang v R [2016] VSCA 238. R v Matthews (1996) 130 FLR 230; R v Carmody (1998) 100 A Crim R 41 at 45; R v Holland [2002] VSCA 118; R v Mangione [2006] VSCA 34; R v Ceissman (2001) 119 A Crim R 535; R v Togias (2001) 127 A Crim R 23, Huynh v R [2015] NSWCCA 167, R v Huston; ex parte DPP(Cth) (2011) 219 A Crim R 209, R v Sinclair (1990) 51 A Crim R 418, R v Berlinksy [2005] SASC 316; Markovic v The Queen, Pantelic v The Queen (2010) 200 A Crim R 510.

Sentence:Convicted and sentenced to three year community correction order with attached conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Mackay	Solicitor for the Commonwealth Office of Public Prosecutions
For the Offender	Mr R. Van de Wiel Q.C.	Stephen Andrianakis & Associates

HIS HONOUR:

1Hassan Taiba, you have pleaded guilty to one count of dealing with property reasonably suspected of being proceeds of crime, contrary to s.400.9(1) of the Criminal Code (Cth).

2The details of your offending were set out in detail in a statement of agreed facts, which is Exhibit A to this sentence.  In summary, the circumstances were as follows.

3On 11 September 2014, at about 1.10 pm, you called another man by the name of Ali Behsudi from a public telephone in Preston.  During this conversation you asked Mr Behsudi to meet you at a car wash in Essendon.  He replied that the location was too far away, to which you replied, "one more time, please brother, come today".  You then agreed that you would meet him at Chadstone Shopping Centre outside a bank.  During this conversation neither you nor Mr Behsudi used each other’s names.

4Later that afternoon Mr Behsudi drove his vehicle to Chadstone Shopping Centre, where he parked in a loading dock.  Shortly afterwards you also drove your vehicle to that location, continued past Mr Behsudi's car, and then parked.  There was an unidentified man in the passenger seat of your vehicle.

5Mr Behsudi exited his vehicle and stood on the footpath, outside a bank.  You exited your vehicle, approached Mr Behsudi and spoke to him.  You and Mr Behsudi walked to your vehicle.  You took a bag from underneath the back seat of your vehicle and gave it to Mr Behsudi.  You said to him, "Here, there's money."  Mr Behsudi asked you, "How much money is it?", and you told him it was $150,000.  Mr Behsudi walked back to his car, carrying the bag, got into his car and drove away.

6A short while later police officers stopped Mr Behsudi's vehicle in Hampton Park.  Mr Behsudi consented to a search of his vehicle.  Officers seized a bag from behind the front passenger seat.  It contained $150,000 in cash, vacuumed sealed in plastic.

7You were arrested on 15 October 2014 and participated in a record of interview with police.  You stated that you did not know Ali Behsudi and that you were not currently working.  You gave details about your home address and that it was a part of your late wife's estate. You provided police with some details of money still owing on the property and that the whole family was looking after the mortgage payments on the property.

8It is reasonable to suspect that the money dealt with by you was proceeds of crime because the value of the money involved is grossly out of proportion with your income over the period leading up to your offending conduct, and the circumstances in which you dealt with the money on 11 September 2014 were inherently suspicious.

9Your counsel submitted that you believed that the money was from illegal gambling, and that the money was destined to be sent to Dubai.  It was accepted at your plea hearing that the money was not related to either drugs or terrorism.

10By way of background, you are 50 years old.  At the time of offending you were aged 46.

11You were born in Tripoli in Lebanon and came to Australia with your family at the age of five.  Your upbringing appears to have been unremarkable; free from any domestic violence or substance abuse.  You married your first wife, Audrey, when you were 24 years old.  You had two children together.

12In 2007 your mother, with whom you had a close relationship, died.  In 2009 your wife, Audrey - your first wife, Audrey - died from brain cancer following three years of chemotherapy.  In or about 2011 you met your current partner, Lauren, who is the mother of your two youngest children; Zoe, now aged three,  and Oliver, now aged six.  In 2015, your son from your first marriage was killed in a motor vehicle accident at the age of 18.

13You appear to have had a good work history.  You left school after completing Year 10 and completed a three year apprenticeship in wood machining.  You have worked in a number of jobs, including as a sorter in a warehouse, builder's labourer, spot welder, in the hospitality industry, and as a registered commission agent in the horse racing industry.  You are currently managing a transport company.

14I was informed that you spend most of your time living with your partner and two youngest children in a rental property in Sunbury.  Jasmine, your daughter from your first marriage - now aged 14 - lives with your stepmother in a house that you own - also in Sunbury - where you spend some of your time.

15A report from Carla Lechner, clinical psychologist, dated 22 December 2017, was tendered on your behalf.  Ms Lechner had been retained by your solicitors for that purpose. 

16Her report contained a detailed account of your upbringing and general background, which was largely consistent with the background as provided by your counsel.  Ms Lechner noted, and I accept, that:

·You fulfil the criteria of a diagnosis of major depressive disorder secondary to successive deaths of significant family members including your mother, your wife and your son. 

·The tragic death of your son had a profound effect upon you.  You feel angry by the lack of investigation into the accident and feel let down by the system. 

·You have a close bond with your children.

·Aside from medication, including that for depression and diabetes, you do not take illicit drugs.

·Whilst you reported a gambling problem in the past you have since eased back and deny any attendant financial problems.

·You stated that a gaol sentence would be a disaster and in the end would only hurt your family. 

·Your prognosis was thought to be “favourable” and your risk of reoffending was considered by Ms Lechner to be “low”.

17The offence of dealing with property reasonably suspected of being the proceeds of crime carries a maximum penalty of imprisonment for three years, and/or a fine of 180 penalty units, which equates to $30,600.

18I am conscious of the provisions of s.16A of the Crimes Act (Cth), which provides that in determining the sentence to be imposed in respect of a person for a Federal offence, the court must impose a sentence that is of severity appropriate to all of the circumstances of the offence.

19In addition, I must take into account:

·the nature and circumstances of the offence;

·the degree to which you have shown any contrition for the offence;

·whether you pleaded guilty to the charge in respect of the offence;

·the degree to which you cooperated with law enforcement agencies;

·the deterrent effect that any sentence may have on you, or other persons;

·the need to ensure that you are adequately punished for the offence;

·your character, antecedents, age, means, and your physical and mental condition;

·your prospects of rehabilitation; and

·the probable effect that any sentence will have on any of your family and dependents.

20I am conscious of s.17A(1) of that Act, which provides that a court shall not impose a sentence of imprisonment for a Federal offence unless, having considered all other available sentences, the court is satisfied that no other sentence is appropriate in the circumstances. 

21The prosecutor referred me to the matter of Kim and Fang v The Queen, in which the Victorian Court of Appeal identified some of the principles to be applied in sentencing for money laundering offences under the Criminal Code.  Although you are not charged as such with money laundering, there are some similarities in the offences, and the principles enunciated by the court in that case have some relevance here.

22Firstly; the starting point is to consider where the offence sits in the scheme of offences provided for by Division 400 of the Code. 

23Secondly; attention must be focussed on the precise circumstances of what the offender did, including the actions which constituted the dealing for the purposes of the offence, the period of time over which the offence was committed, the number of transactions involved, the amount involved in the offending and the role of the offender in the money laundering arrangement, including whether the offender was the author or instigator of that arrangement and the degree of authority reposed in the offender in carrying it out. 

24Thirdly; a person who launders money is an important cog in the wheel of organised crime, and such conduct warrants severe punishment in which general deterrence is to be given significant weight. 

25Fourthly; the amount of money involved is a highly significant matter and the primary identifier of the maximum penalty for any given offence. 

26Fifthly; generally speaking, a larger number of transactions involving small amounts of money will be more serious than a single transaction of a larger amount, which might be seen as an isolated offence. 

27Sixthly; it is ordinarily relevant to consider how the money dealt with is proceeds of crime and the extent of the offender's belief as to, or knowledge of, how the money is proceeds of crime.

28Finally; however, consideration of the sentence for which the offender may have been liable had he or she been charged with a different offence - in particular, that which generated the proceeds of crime - is a distraction from the sentencing process in respect of the offence charged.

29In regards to the circumstances of your offending I find the offending to be relatively serious, and your moral culpability relatively high.  I base this on the following considerations.

·Firstly; you instigated the meeting with Mr Behsudi. 

·Secondly; the fact that you used a payphone, and that neither of you used names during the conversation, indicates a degree of sophistication to the offending. 

·Thirdly; your statement, "One more time, please brother", indicates that this offending was not a one-off isolated event. 

·Fourthly; you were aware of the precise amount of money in the bag. 

·Fifthly; the amount of money dealt with was $150,000 - being 1.5 times higher than the minimum threshold for an offence under the section in question.

30There are a number of matters that ought to go in mitigation of your sentence. 

31Firstly; you pleaded guilty to the offence. However, it is clear from the procedural history of the matter that your plea of guilty was not a particularly early one.  You entered a plea of not guilty after a contested committal hearing, and only at the final directions hearing did you indicate an intention to plead guilty.  Further, I note that you were dishonest to the police when you were first interviewed when you stated that you did not know Ali Behsudi.

32I consider that your relatively late plea of guilty and your failure to cooperate with police indicate, in all likelihood, that you have little remorse for your offending.  Nevertheless, your plea has utilitarian benefit in that witnesses will not be required to give evidence at a trial and court resources were saved.  It may be demonstrative of some remorse on your part and you are entitled to a discount as a result of that.

33Your counsel submitted, and I accept, that you have relatively good prospects for rehabilitation.  You have no prior criminal history, you have a good work history, you are self-employed, and you have strong family connections.  In her report, Ms Lechner notes that you had insight regarding the impact of grief and depression on your functioning and show a willingness to be involved in treatment.

34Two letters from Mr Adrian McDonald, manager of a transport company, were tendered on your behalf.  He speaks highly of your instrumental role within the company despite your history of personal tragedies. 

35Further character references were tendered on your behalf from your friends Allan Chandler, Andrew Aris and Scott McKay, and a real estate agent, Jack Medcraft. 

36They each speak highly of you, and of your role in the community.  They consider you to be trustworthy and a person of good character.  They speak of your problems coping with depression and of your qualities as a father and family man.  I take those into account, although when each of them describes you a person of good character one infers from that that they had no idea of the crime that you were committing, and had committed.  Perhaps they did not know you as well as they thought they did.  Nevertheless, I take each of those character references into account.

37Mr Aris also gave oral evidence at your plea hearing.  He stated that you were very close to your son, Stefan, and that his death had had a profound impact on you.  He was of the view that you still suffered from depression from time to time.

38Your counsel informed me at the time of the commission of the offence that you were unemployed and suffering from depression, which had been exacerbated by the death of your son.  You are currently on antidepressants - namely Pristiq, 100 milligrams daily.

39Pursuant to s.16A(2)(p) of the Crimes Act (Cth) one of the matters that I am to take into account in sentencing a person for a Commonwealth offence is the probable effect that any sentence, or order under consideration, would have on any of the person's family or dependents.

40Those words, plainly read, suggest that I am obliged to take into account any level of family hardship when determining your sentence. However, contrary to what I consider to be "plain reading", the prosecutor referred me to a long line of appellate authority for the proposition that - in Victoria at least - s.16A(2)(p) preserves the common law requirement that an offender must demonstrate exceptional circumstances before family hardship becomes a matter capable of mitigating sentence.

41Those matters making up that line of authority - I will not give you the full citations, but they are the matters of Matthews, Carmady, Holland, Mangione, Ceissman, Togias, Huynh, Huston, Sinclair, Berlinsky, Markovich and Pantelic.

42Notwithstanding the later submissions made on your behalf questioning the correctness of that line of authority, I consider that I am bound by those authorities, and in particular, the 2010 Court of Appeal decision in Markovich and Pantelic where the court stated:

"The exceptional circumstances test has been adopted throughout Australia as governing the position at common law. There is likewise a uniform national position in relation to sentencing for Commonwealth offences. The requirement in s.16A(2)(p) of the Crimes Act (Cth) - that the court consider the probable effect of the sentence on family and dependents - has been construed as being subject to the exceptional circumstances test".

43Your counsel submitted to me that exceptional circumstances in relation to family hardship for the purposes of the section had been demonstrated.

44The prosecutor submitted that your family circumstances fell short of exceptional, pointing out that the actual degree of hardship is difficult to assess.

45I have perused a number of the decisions in which exceptional hardship was found to exist, or not to exist.  Whilst those decisions provide me with some guidance, ultimately they are of little assistance, and each case must turn on its own unique facts.

46Ms Wilson, your current partner, gave oral evidence at your plea hearing, stating that:

·She suffers from a back injury, causing her pain.  She reported a history of spontaneous fractures and numerous surgeries. She is currently seeing a physiotherapist.

·She frequently experienced debilitating migraines, during which time she was unable to leave her bed or care for the children, who are young. 

·She stated that when she was having a bad day you were effectively the full time carer for both her, and for the two young children. 

·She has a brain tumour, although this was not considered to be the cause of her migraines. 

·She currently relies upon you as her sole source of income, although it is possible that she may be able to apply for a disability support pension at some stage in the future. 

·She stated that whilst in the past she had been able to rely on her mother for help, this was no longer possible because her father had been hospitalised with a brain haemorrhage and needed long term full-time care.  I have been advised since your plea hearing that her father has indeed passed away.

47Various medical materials relating to Ms Wilson were tendered, and I accept from that material that Ms Wilson suffers from a number of significant medical issues consistent with the account given by her to the court.  I accept that she requires assistance of a carer with domestic chores, personal health issues and care for the young children.

48A medical report dated 27 July 2018 refers to your son Oliver's anxiety and asthma.  The report stated that your daughter, Jasmine, had depression caused by family losses, and a letter from her school was tendered.

49A report from Dr Aaron Cunningham, psychologist, dated 10 September 2018, was provided to the court after the plea hearing.  It indicates that Jasmine presented recently to him with grief and loss regarding the death of her brother, but was not consistent with any mental illness as such.  Dr Cunningham considered that her grief and loss would be aggravated by incarceration of her father and that she would benefit from psychological intervention if that occurred.

50Taking all of the circumstances into account I have come to the conclusion that I can accept that you have demonstrated that your family circumstances are exceptional for the purposes of going in mitigation of your sentence.  I base this on the following reasons: 

·You have an important role as father and caregiver for Jasmine, who reportedly suffers from depression caused by family losses. 

·You have an important role as father and caregiver to your two youngest children; Zoe, aged only three, and Oliver, only six, who reportedly suffers from anxiety and asthma. 

·Your current partner, Ms Wilson, has multiple health issues and requires your care.  During times when Ms Wilson is suffering from migraines your role caring for your three children is heightened. 

·You and your family have been affected by a series of tragic deaths involving your mother, your ex-wife, your son and recently, your father in law.

51In terms of principles of parity, I am conscious that in sentencing you I must avoid any unjustifiable disparity between your sentence and the sentence imposed on your co-offender, Mr Behsudi.

52On 19 December 2017 Her Honour Judge Cannon, of this court, sentenced Mr Behsudi in relation to two counts 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 count of dealing with a sum of money more than $100,000 where it was reasonable to suspect that such money was proceeds of crime.  The latter count related to Mr Behsudi's receipt of the $150,000 from you.

53There are differences between your culpability and the circumstances of your offending and that of Mr Behsudi's, including:

·Firstly, that Mr Behsudi had undertaken to give evidence against you before he was sentenced.  He showed a high level of cooperation with police and pleaded guilty early.  Her Honour found that this warranted "a fairly substantial discount". 

·Secondly, Mr Behsudi was otherwise of exemplary character, going well beyond absence of prior convictions.  Her Honour found him to have excellent prospects of rehabilitation. 

·Thirdly, Mr Behsudi had had a most difficult personal background, including persecution by the Taliban in Afghanistan until his arrival in Australia by boat in 2000. 

·Fourthly, Mr Behsudi was involved in three separate instances of offending which resulted in three separate charges, as opposed to one instance and one charge in your case. 

·Finally, Mr Behsudi dealt with a total of $260,000 in all; some $110,000 greater than your case.  I find that this distinction in particular is of high relevance and indicates a higher level of criminality on Mr Behsudi's part.

54Her Honour sentenced Mr Behsudi to an aggregate sentence of imprisonment for 12 months, but to be released forthwith on a recognisance release order in the sum of $2,000 to be of good behaviour for three years. 

55Her Honour stated that if not for Mr Behsudi's undertaking to give evidence against you she would have imposed an aggregate sentence of imprisonment of 18 months, to be released after 12 months on a recognisance in the sum of $3,000 to be of good behaviour for three years.

56Further, if not for Mr Behsudi's guilty plea, Her Honour stated that she would have imposed an aggregate sentence of imprisonment for three years and six months with a non-parole period of two years and three months.

57In the current matter, the prosecutor submitted that a term of immediate imprisonment was the only appropriate sentence, given the relative objective seriousness of the offending, the importance of general deterrence and the need to denounce your offending conduct.

58Your counsel submitted that alternatives to incarceration were available and appropriate.

59Taking all of the circumstances into account I am satisfied that a community correction order of appropriate length, and with attached conditions, is of a severity appropriate in all of the circumstances of your offending.  

60Such an order will facilitate - or can facilitate - conditions conducive to your rehabilitation, whilst allowing you to continue to care for your family. A community work condition, as well as the relatively onerous nature of the mandatory conditions set out in s.45 of the Sentencing Act in Victoria, can fulfil the punitive aspects of sentencing that I consider are required.  A mental health treatment condition is likely to assist you in dealing with your major depression disorder.

61Now, before I am able to make any such order the Sentencing Act requires me, firstly, to obtain whether you consent, or will consent to such an order.  It also requires me to have you assessed by Corrections Victoria to determine whether you are considered suitable for such an order.

62My associate has arranged for you to be assessed this day by Community Correctional Services on Level 1 of this building at 11 am, which is just under one hour hence, and I intend to stand the matter down whilst I await a report to be prepared, but that would be a waste of everybody's time if you were not going to consent to a community correction order.  I see you nodding your head, but in all fairness to you I should tell you what the conditions will be before asking you whether you consent.

63Firstly; there are a number of mandatory conditions which apply to every community correction order. These are set out in s.45 of the Sentencing Act.  Listen carefully, although you will be given these in writing in due course. 

·You must not commit - whether in or outside Victoria during the term of the order, which will be for three years - any offence punishable by imprisonment. 

·Secondly; you must report to, and be prepare to receive visits from Corrections Victoria officials during the period of the order. 

·Thirdly; you must report to the designated Community Corrections Centre - which will be determined following your meeting at 11 am - within two clear working days after this order comes into force.  That will be by 4 pm next Tuesday, 25 September. 

·Fourthly; you must notify Corrections Victoria of any change in your address, or your employment, within two clear working days of such a change.

·Finally; you must not leave Victoria, except with the permission of Corrections Victoria, for any reason.  If you go to Albury you have left Victoria.  You understand?

64In addition to those mandatory conditions I intend to impose the following additional conditions. 

·Firstly; I shall order that you complete during the three year period of the community correction order 150 hours of unpaid community work pursuant to s.48C of the Act. 

·In addition, it will be a condition that you undergo treatment and rehabilitation by way of mental health assessment and treatment, which may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, pursuant to s.48D(e) of the Act. 

·Further; that you are to be under the supervision of a Community Corrections officer for the three year period of the order.  In effect that means that you will have to attend at the Community Corrections office or premises when directed, for general supervision pursuant to s.48E of the Act.

65Now, I may as well ask you now; having heard those conditions and assuming, for the moment, that you are considered appropriate for a community correction order by Corrections Victoria, do you consent to the imposition of a community correction order with those conditions?

66OFFENDER:  Yes, I do, Your Honour.

67HIS HONOUR:  Thank you.  In that case what I will do is stand the matter down until 2.15 and we will be reassemble here at that time.

68MR van de WIEL:  Your Honour pleases.

69HIS HONOUR:  Thank you.

70(Upon resuming at a later stage.)

71HIS HONOUR:  Yes, I've received a report from Corrections Victoria indicating that Mr Taiba is considered suitable for a community corrections order.  I assume that counsel have perused that report?  No?

72MR van de WIEL:  It's not been provided (indistinct words).

73HIS HONOUR:  Well, we can get you one directly.

74MR van de WIEL:  But I take it it's in the terms that Your Honour indicated this morning?

75HIS HONOUR:  Yes.  Well, the author does not raise any issues in relation to the proposed conditions.  What is of relevance for Mr Taiba's edification is that he must report to the Community Corrections office at 10 Foundry Road, Sunshine, by 4 pm on ‑ ‑ ‑ 

76MR van de WIEL:  Tuesday.

77HIS HONOUR:  ‑ ‑ ‑ Tuesday of next week.

78MR van de WIEL:  Yes, thank you.

79HIS HONOUR:  I believe that what you're about to be handed would confirm that address.  Yes, Mr Taiba, there's a document that has been handed to your counsel - he may wish to just discuss that with you briefly.  It requires your signature, indicating that you consent to the community corrections order and the conditions that I outlined to you before we adjourned.  Signed apparently?  Yes, thank you.

80I have made those orders in accordance with the terms that I indicated before we adjourned, and I just want to say one thing to you, Mr Taiba.  The orders, or the conditions, require you to attend at the Community Corrections office when required.  If there are breaches of the conditions that in itself is an offence; a criminal offence punishable by imprisonment up to three months in gaol.

81If there is some reason why you can't attend an appointment then what you should do is pick up the phone and ring someone at Corrections Victoria and explain the position.  The very worst thing you could is simply not turn up on the day; that in itself amounts to a breach.

82A breach is punishable in a number of different ways.  Firstly; a prison sentence up to three months in duration.  Secondly; the matter will come back before me and one of the options I have is to re-sentence you in relation to your original offences - or offence, in this case.  You understand that?

83OFFENDER:  I do, Your Honour.

84HIS HONOUR:  Not a good idea.

85OFFENDER:  No.

86HIS HONOUR:  All right, thank you.  You may go and - sorry, yes?

87MS MACKAY:  Your Honour ‑ ‑ ‑ 

88HIS HONOUR:   You wanted to say something?  Just wait for a moment.

89MS MACKAY:  I would simply ask that you indicate what the sentence would have been were it not for the guilty plea.

90HIS HONOUR: Section 6AAA I did not. Just pause for a moment. Yes, I knew that I'd considered this. Just a moment.

91Yes, I should say that pursuant to s.6AAA of the Sentencing Act I declare that had you not pleaded guilty to this charge I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.

92Ancillary orders, other?

93MS MACKAY:  No, Your Honour.

94MR van de WIEL:  No.

95HIS HONOUR:  Thank you.  Yes, on that note, Mr Taiba, you're free to go.  Counsel are excused from the Bar table.

96MS MACKAY:  Thank you, Your Honour.

97MR van de WIEL:  Your Honour pleases.

98HIS HONOUR:  Thank you.

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