R v Arja

[2022] NSWDC 433

District Court

New South Wales

Medium Neutral Citation:

R v Arja [2022] NSWDC 433

Hearing dates:

29 June 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

See [168]

Catchwords:

SENTENCE- Recklessly deal with property that would become an instrument of crime- Accessory before the fact to publish false statement- Recklessly deal with the proceeds of crime- Attempt to steal a motor vehicle- Larceny as a bailee- Receive stolen motor vehicle.

Legislation Cited:

Crimes Act 1900 (NSW) ss 193D(2), 192G(b), 346, 193B(3), 154F, 344A(1), 125, and 188(1)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Johnson v The Queen [2004] HCA 15

Mill v The Queen (1988) 166 CLR 59

Category:

Sentence

Parties:

Rex
Foaud Ajar

Representation:

Counsel:
Mr Royce (Offender)

Solicitors:
Mr Triscari and Ms Gilmore (Crown)
Mr Kassem (Offender)

File Number(s):

2020/236255

Publication restriction:

Nil

Judgment

Introduction

1. Fouad Arja (the offender) appears for sentence in respect of several charges in respect of which he has pleaded guilty. The matter had been committed for trial from Burwood Local Court on 17 November 2021. The offending took place between 16 December 2019 and 24 July 2020. The offender was arrested 13 August 2020 and has been in custody since that time.

2. The charges for sentence are set out in the table below:

COUNT	CHARGE	OFFENCE PROVISION Crimes Act 1900 (NSW)	MAXIMUM PENALTY
1	Recklessly deal with property that would become an instrument of crime (rolled up).	s. 193D(2)	10 years imprisonment.
2	Accessory before the fact to publish false statement.	s.192G(b)/s.346	5 years imprisonment.
3	Recklessly deal with the proceeds of crime (rolled up).	s. 193B(3)	10 years imprisonment.
4	Accessory before the fact to publish a false statement.	s.192G(b)/s.346	5 years imprisonment.
5	Accessory before the fact to publish a false statement.	s.192G(b)/s.346	5 years imprisonment.
6	Attempt to steal a motor vehicle.	s.154F/s.344A(1)	10 years imprisonment.
7	Larceny as a bailee.	s.125	5 years imprisonment.
8	Receive stolen motor vehicle.	s. 188(1)	12 years imprisonment.

3. There is not a standard non-parole period for any of the offences.

4. The maximum penalty reflects the seriousness with which the community, through Parliament, regards the offending. They are guideposts for a sentencing Judge.

5. Following being committed to this Court, a trial dated of 27 February 2023 was set. Pleas of guilty on the indictment were entered on 14 April 2022. For all counts, except count 3, the offender is entitled to a discount of 10% reflecting the time at which the guilty plea was entered (s. 25D(3)(b)(i)). In respect of count 3, the offender offered to plead guilty to that charge in the Local Court and is entitled to a discount of 25% on sentence. The discount reflects the utility of the guilty pleas, a mitigation of sentence pursuant to section 21A(3) Crimes (Sentencing Procedure) Act 1999 (NSW) and the assistance the plea gives to the administration of justice.

Adherence to pleas

6. In respect of the 8 charges which I have just read, do you maintain your plea of guilty?

agreed Facts

7. On 28 January 2020 police located the following motor vehicles previously reported stolen at a property in Rossmore:

1. BMW 3 series E90 registration ending 17A;

2. BMW 335L registration ending 813;

3. BMW X5 registration ending 44H;

4. Iveco Prime mover registration ending 4MB;

5. Mazda 3 registration ending 50X.

8. The statement of facts is a little confusing. Count one is a rolled up charge relating to vehicles numbered 1, 4 and 5 above together with 4 other vehicles referred to elsewhere in the statement of facts being a Rav 4 registration ending 66R (see paragraphs 49 and following), and Audi Q7 with registration ending 04T (see paragraphs 113 and following), a Volvo Prime Mover with engine number ending 947 (see paragraphs 120 and following), and another Rav 4 with registration ending 64N (see paragraphs 135 and following).

9. The BMW 335L with registration ending 813 was registered to MZ. Prior to the vehicle being reported stolen by MZ the offender received the vehicle with the car key. On 13 November 2019 MZ reported the vehicle stolen. A claim was lodged with an insurance company. MZ told the insurer that he parked the vehicle on the street on 12 November 2019 at his girlfriend’s house and when he went back the next day it was gone. The insurer paid the agreed value of $28,261.00 together with some additional charges relating to the hire of a car.

10. On 17 February 2020 police attended BMW Parramatta and provided the keys located with vehicle registration ending 813 and vehicle registration ending 17A. The key for vehicle registration ending 813 was identified as a BMW original key which had last been used on the vehicle on 14 November 2019. The key for vehicle registration ending 17A was also an original key last used on 25 December 2019.

11. There is no evidence that the offender benefited from the insurance payment or assisted in the insurance claim being made. By his plea, the offender admits that he was aware of the possibility that in accepting possession of the vehicle from MZ he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

12. The following facts relate to the BMW 3 series registration ending 17A and forms part of the rolled-up charge being count 1. This vehicle was registered to the partner of MZ, NA. On 30 September 2019 NA took out a comprehensive insurance policy for the agreed value of $8,855.00. On 25 December 2019, the offender received the vehicle and its key. CCTV footage from the Rossmore property captured the vehicle entering the driveway of the property at 7:07 PM on 25 December 2019, followed by a silver Toyota Kluger. On 26 December 2019, NA reported the vehicle stolen and lodged a claim with her insurer. She told the insurer that the vehicle had been parked at the front of the house and was stolen. On 8 January 2020 the insurer paid NA $6,777.24.

13. There is no evidence that the offender benefited financially from the claim nor assisted in the making of the claim. By his plea, the offender admits that he was aware of the possibility that it in accepting possession of the vehicle from NA he would be dealing with property that would be used to facilitate the commission of a serious offence, namely fraud.

14. The following facts relate to the Iveco Prime mover with registration ending 4MB and forms part of the rolled-up charge being count 1. The vehicle was registered to RE. The last person to drive the vehicle was MM on 26 November 2019. The vehicle was parked and locked on Cosgrove Street at Belfield. The offender received the truck and its key. At 6 AM the next day, the driver returned to the vehicle and the truck was gone but the semitrailer had been left behind.

15. The vehicle was reported stolen and a claim was lodged with the insurer. The vehicle was insured for $20,000.00. The vehicle was seized by police on 28 January 2020 at the Rossmore address at which time the key was in the ignition of the vehicle and there was no evidence of forced entry. The insurer did not pay the claim.

16. There is no evidence that the offender benefited from the insurance claim nor that he assisted in the claim being made. By his plea of guilty, however, he admits that he was aware of the possibility that in accepting possession of the vehicle he would be dealing with property that would be used to facilitate the commission of a serious offence, namely fraud.

17. The following facts relate to the Mazda 3 with registration ending 50X and forms part of count 1. The vehicle was registered to WW and mostly used by his son TW. It was reported stolen on 22 January 2020. The vehicle had been insured for $9,850.00. The claim was lodged on 22 January 2020. Prior to the vehicle being reported stolen, the offender received the vehicle and a key.

18. Surveillance footage at the Rossmore property captured the vehicle being driven into the driveway on 21 January 2020 at about 5:24 PM. An unknown male exited the vehicle and left the property. Shortly thereafter, the offender entered the driver seat and an unknown male got into the passenger seat. The vehicle was driven from that location before returning a short time later.

19. A forensic locksmith determined that the key located with the vehicle was the key that had been in primary use. The key was factory issued.

20. To date, WW has not received an insurance payout. There is no evidence that the offender benefited from the insurance claim nor assisted in making the claim. By his plea the offender admits that he was aware of the possibility that in accepting possession of the vehicle from WW, he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

21. The following facts relate to the BMW X5 with registration ending 44H. This is count 2. It was registered to MF. On 21 January 2020 MF reported the vehicle stolen. The vehicle was insured for $50,200.00. An insurance claim was lodged by AF, the registered insured, on 21 January 2020.

22. Surveillance footage showed the vehicle being driven onto the Rossmore property on 20 January 2020 by MF. The footage shows MF and AF talking with the offender. Shortly thereafter they got back into the vehicle and drove away. Surveillance footage from earlier that day showed a vehicle with registration ending 2MJ at the Rossmore property. That vehicle was seen leaving the property at about 3:02 PM that day, about 16 minutes before MF and his wife arrived with the BMW.

23. Phone records show that the offender was in direct contact with MF between 6:28 PM and 10:30 PM on 20 January 2020.

24. At 9:50 PM that day a 4WD was seen leaving the Rossmore property with the offender and an unknown female inside.

25. Sometime between 9:50 PM and 11:09 PM MF provided the vehicle and a set of keys to the unknown person that left the Rossmore property in the 4WD. The female drove the vehicle back whilst the male drove the 4WD.

26. At 11:09 PM vehicle registration ending 44H was recorded being driven onto the property. The unknown female got out of the driver’s seat. A short time later, the 4WD returned to the property and stopped behind the other vehicle. AF gave a false account to the insurance investigator. Police determined the key was the original BMW key registered to that vehicle.

27. There is no evidence that the offender benefited from the insurance claim nor did the offender assist in making the claim. By his plea of guilty, however, he admits that he received a vehicle knowing that AF intended to make a fraudulent insurance claim with respect to the vehicle.

28. The International Acco with registration ending 0KS is a tabletop truck with a 16 tonne towing capacity. It was registered to DR, who also was the registered owner of an excavator with registration ending 98D.

29. On 18 April 2020 an unknown male pulled something out of his pocket and manipulated the driver’s side door lock of the vehicle ending 0KS. He opened the door entered the cabin of the vehicle and drove off with the excavator attached. Some time that day the excavator was delivered to the Rossmore property by KA. On 18 April 2020 a telephone call between KA and the offender was intercepted. KA told the offender that he “got a new one” and had parked it out the back.

30. On 20 April 2020 the offender engaged in a telephone conversation with an unknown person. The call was intercepted. The offender told the unknown person that he (the offender) was a thief but trustworthy. He told the unknown person that he had just stolen an excavator.

31. On 24 April 2020 at 3:00 AM a vehicle with registration ending 0KS was stopped by police on Old Windsor Road. At the time it was stopped the vehicle was bearing different registration plates which did not match the vehicle. The excavator was no longer strapped to the tabletop. KA was driving the vehicle.

32. Later the same day police attended the Rossmore property and spoke with the offender. They entered the property and seized the excavator. The numberplate had been removed from the machine. The offender told police that other police attended the property a week prior and recovered a different excavator. The offender told police that MA had brought the excavator to the property.

33. There is no evidence the offender facilitated or assisted in the stealing of the machine. By his plea, the offender admits, however, that he was aware of the probability that the excavator he received from MA had been stolen by MA.

34. The following facts relate to a Toyota RAV4 registration ending 66R. This is part of the rolled-up count being count 1. The vehicle was registered to KA. He reported the vehicle stolen on 8 May 2020. He lodged a claim with an insurer. About 11 minutes after parking the vehicle outside an address in Greenacre, a black utility drove past (Toyota registration ending 66R). The indicator lights for the Toyota 66R flashed. The black utility continued out of sight. A short time later, an unknown male approached the vehicle registration ending 66R, entered the vehicle and drove it away. Some time prior to that, KA provided a key to the vehicle registration ending 66R to one of the offender’s associates.

35. Telephone intercepts recorded the offender saying to his wife that Wassim and Maher were going to get a car at Greenacre. Shortly thereafter an SMS was sent from the offender to Wassim “1/3 Kelly Street Austral”. Shortly thereafter a telephone call between the offender and his wife was intercepted with the offender telling his wife that he got a 2014 RAV4 and he will sell it to Towbar for $8,000.00. On 10 May 2020 vehicle registration ending 66R was located in Austral and seized by police. To date, no insurance payout has been made.

36. There is no evidence that the offender benefited from the insurance claim nor that he assisted in making the claim. By his plea, however, the offender admits that he was aware of the possibility that in accepting possession of the vehicle from KA he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

37. On 27 May 2020 police again entered the Rossmore property and seized the following motor vehicles:

1. Renault Master van registration ending 70A;

2. Mitsubishi Canter registration ending 1JJ; and

3. Yanmar excavator registration ending 971.

38. The following facts relate to the Renault registration ending 70A which is the subject of Count 4 (accessory before the fact to publish a false statement with the intention of obtaining financial advantage). The vehicle was registered to Suave Tours Pty Ltd, a tour company owned and operated by ES. The vehicle was comprehensively insured for $65,000.00.

39. There were 2 keys to the vehicle. One stayed with ES and the other would be used by other drivers and usually left on the passenger side mud flap after the vehicle had been driven.

40. Sometime between the end of March 2020 and 13 May 2020, ES arranged for the Renault to be taken from where he had parked it so that he could report it stolen. Sometime between those dates the vehicle was taken to the Rossmore property. The vehicle was reported stolen by ES on 15 April 2020.

41. On 13 May 2020 at 2:48 PM the offender was captured on CCTV getting into a black Renault van at the Rossmore property. The van displayed registration plates with the number ending 40N which was the numberplate registered to a white Peugeot station wagon at the relevant time. The offender was again seen driving the black Renault van on 19 May 2020.

42. The Crown is not aware as to whether an insurance payout was made in respect of the Renault van.

43. There is no evidence that the offender benefited from an insurance claim nor assisted in the making of such a claim. By his plea, the offender admits that he received the vehicle knowing that ES intended on making a fraudulent insurance claim with respect to the vehicle.

44. The following facts relate to the Mitsubishi Canter registration ending 1JJ, being the subject of Count 5. This vehicle was registered to VR who reported it stolen on 21 May 2020. Around that time VR lodged a stolen vehicle claim with an insurance company. Sometime prior to 20 May 2020 VR provided a key to the vehicle to an associate of the offender who then orchestrated the theft of the truck. CCTV footage showed the vehicle parked outside VR’s business address. A vehicle of similar appearance to a Toyota Prado was driven and parked a short distance away. An unknown male exited the passenger seat of the Prado before entering the Mitsubishi Canter and driving it away.

45. There is no evidence the offender benefited from an insurance claim or assisted in the making of a claim. By his plea of guilty, however, the offender admits that he received the vehicle knowing that VR intended to make a fraudulent insurance claim with respect to the vehicle.

46. The following facts relate to an excavator with registration ending 971 being part of the rolled-up charge the subject of Count 3. The excavator was owned by On Rail Plant Hire. The manager of the business is CP. He reported the vehicle stolen on 10 March 2020 from Greenacre.

47. CP viewed CCTV from the area in the days after he reported the vehicle stolen and he observed a flatbed truck driving away from the area in the early hours of the morning on 10 March 2020 with 2 excavators on the back. Sometime between 10 March 2020 and 27 May 2020 the excavators were delivered to the Rossmore property by one of the offender’s associates.

48. There is no evidence the offender benefited from any insurance payment or assisted in the making of a claim. By his plea, the offender admits that he was aware of the probability that the excavator had been stolen by one of his associates.

49. The following facts relate to a Kubota excavator, the subject of Count 6. On 14 July 2020 it was parked on Forest Road East Hills. The property was secured by a 3 m high metal fence and a gate with a padlock. The vehicle was owned by ZK and was fitted with a security system which required a pin code in order to enter and start the vehicle.

50. Between 3 PM and 5 PM that day, the offender and an unknown male attended the location in a Toyota Prado with a trailer. They removed the fencing surrounding the driveway without having to remove the padlock and/or chain. They walked over to the Kubota and attempted to start the vehicle. That was unsuccessful. They both appeared then to use their phones before leaving the location.

51. ZK circulated on Facebook the CCTV footage capturing this incident. The offender and his brother thereafter attended the premises. When police arrived, the offender’s brother told police that “it was a misunderstanding, the person on his post is my worker and he attended the wrong address to pick up my excavator”. The brother apologised to ZK. Fingerprints located on the excavator match the offender and Ibrahim Assaf.

52. The offender admits that he was attempting to steal the excavator on 14 June 2020.

53. The following facts relate to a Hino truck and Hitachi excavator the subject of Count 3 being a rolled-up count of recklessly deal with the proceeds of crime. The truck registration ending 9KZ and the excavator with VIN ending 507 were owned by AB. Both vehicles were fitted with a GPS tracking device.

54. On 22 July 2020 about 3:30 PM, AB parked the truck and excavator on Croydon Road at Hurstville. Both were locked and secured. Sometime thereafter the offender’s associates stole the truck and excavator and drove to the Austral property. At about 3:00 AM on 23 July 2020 the GPS tracker notified AB that the truck and excavator had begun to move. At about 4:00 AM, AB was notified by the tracker that the vehicles were located in a paddock in Austral.

38. During the afternoon on 23 July 2020 AB attended that address with a friend and saw the truck and excavator parked at the rear of the paddock. Police attended at about 3:40 PM at which time AB recovered the vehicles. After they were returned to him, he noticed that the trackers on both vehicles had been removed.

39. On 22 July 2020 police intercepted telephone calls involving the offender. The first at 1:32 PM when Assaf told the offender that there was a machine and a truck located near him. They arranged to attend that location with a person named Aboulhaf later that day. At 3:35 PM a telephone call was intercepted between the offender and Aboulhaf where the latter informed the offender that there was a tracker. The offender said they will remove it and throw it away.

40. By his plea the offender admits that he was aware of the probability of the truck and excavator he received from Aboulhaf and Assaf had been stolen by them.

41. On 20 July 2020, a Bill of Lading was lodged in relation to a shipping container bound for Beirut, Lebanon. It said the container would comprise parts and accessories of motor vehicles. The Customs Declaration and Packing List provided a description of the goods being shipped as 114 used engines. Documents identified the shippers name as Andan Arja. The telephone number provided was that of the offender. On 29 July 2020 surveillance was conducted by police at the Rossmore property. Police observed a shipping container to be taken from that property to Port Botany.

42. Later that day, Australia Border Force officers x-rayed the container identifying 3 excavators inside it. They comprised a Hitachi excavator, a Yanmar excavator and a Komatsu excavator, reflected in counts 3, 8 and 3, respectively.

43. The following facts relate to the Hitachi excavator. On 8 July 2020, Assaf hired it from Complete Hire at Condell Park. The delivery address provided was 1 Kelly Street Hurstville. Its delivery was arranged by the offender with Kamaleddine who took the excavator to the Austral property.

44. Telephone calls were intercepted between the offender and Assaf on 20 and 21 July 2020 regarding payment to the hire company. On 27 July 2020 a text message was sent from Assaf to the offender showing a text from the hire company saying the excavator will be reported stolen. On 28 July 2020 the manager of the hire company reported the excavator stolen.

45. By his guilty plea, the offender admits that he was aware of the probability that the excavator he had received had not been lawfully obtained insofar as Assaf was the bailee of the excavator.

46. The Yanmar excavator is the subject of count 8. JG is the registered owner of the excavator. On 23 July 2020 he made arrangements with someone he knew as Sobh to provide the latter with the excavator for a job in Ryde. The agreement was that JG would be paid $3,200.00 for the week from 23 July 2020. JG dropped off the excavator along with buckets and hammer attachments to a vacant construction site on Buffale Road, Ryde.

47. On 29 July 2020 JG returned to that location and the excavator was not there, although the buckets and hammer were. JG spoke with Sobh who said that he did not know what happened to the excavator. A short time later JG observed Sobh get into a flatbed truck. At this time the buckets and hammer which JG had earlier observed on the site were now on the back of the flatbed truck. Sobh then delivered the excavator to the offender at the Rossmore property. The excavator was reported stolen on 29 July 2020.

48. Whilst there is no evidence that the offender facilitated or assisted in the stealing of the machine he has, by his guilty plea, admitted that he knew that the excavator was stolen when he received it from Sobh.

49. The following facts relate to the Komatsu excavator which forms part of the rolled-up count 3. RC is the registered owner of the excavator. He is also the registered owner of a Hino Ranger registration ending 5QH. Both vehicles were comprehensively insured.

50. RC parked the Hino Ranger with the excavator secured on the rear of the truck on Muir Road at Chullora and around 3:30 PM on 22 July 2020. Both were locked and secured. A telephone call between the offender and Aboulhaf on 22 July 2020 at 6:31 PM was intercepted when the offender said that he had the key to the Komatsu and asking “how will he start it”. The Komatsu excavator was stolen by Aboulhaf sometime after 5:50 PM on 22 July 2020. He delivered the excavator to the offender at the Rossmore property. When RC returned to the property he noticed the truck and the excavator were both missing. He reported the vehicles stolen.

51. There is no evidence that the offender facilitated or assisted in the stealing of the machine, however, by his plea he admits that he was aware of the probability that the Komatsu excavator he received had been stolen.

52. On 13 August 2020 police executed a search warrant at the Austral property. The offender was cautioned and placed under arrest. The following stolen items were seized:

1. Scania prime mover and low loader trailer with a Kubota excavator;

2. Audi Q7 with registration ending 04T;

3. Toyota RAV4 with registration ending 64N;

4. Volvo engine ending with the identification number 947.

70. Upon being questioned, the offender told the police that the Scania truck, low loader and excavator had been brought to the property by Aboulhaf and that Aboulhaf intended to sell the Scania and Kubota. The offender said that he had nothing to do with it.

71. The following facts relate to the Audi Q7 with registration ending 04T forming part of the rolled-up charge, count 1. GS was the registered owner of the vehicle. On 17 June 2020 GS drove it to work at St Mary’s arriving at around 6 AM. When he returned to the vehicle sometime between 11:30 AM and 1:00 PM that day, it was missing. The vehicle was reported stolen. The vehicle was insured. Police intercepted a phone call between the offender and another male (Ahmad) at 12:11 PM that day. The other man wanted “to get rid of” the Q7. It appears that the offender offered Ahmad $3,000.00.

72. Another telephone call was intercepted on 5 August 2020 at 10:06 PM between the offender and an unknown male. The offender said that he was “working, wrecking a Volvo truck for the guy to go [to] Dubai”. The offender said that he got two four-wheel drives today a Hyundai and a Q7, and that “someone wants to do insurance”. The unknown male asked if he would get something from this and the offender told him that “every week I’ll get you something”.

73. On 7 August 2020 at 9:54 PM police intercepted another telephone call between the offender and Ahmad. The offender asked Ahmad what happened with the Audi. Ahmad said that he hadn’t seen the guy but would ring him tomorrow and get it tomorrow.

74. The offender came into possession of the Audi vehicle on 7 August 2020. When he was asked by police about the vehicle the offender said “I don’t know what’s his name. He come in a new one, come and check out it’s not stolen, you have keys inside”.

75. There is no evidence that the offender benefited from the insurance claim or assisted in making the claim however by his plea he admits that he was aware of the possibility that in accepting possession of the vehicle from GS he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

76. The following facts relates to a Volvo with registration number ending 6ER, which forms part of the rolled-up charge, count 1. The Volvo prime mover was registered to RF Pty Ltd owned by GS. It was insured by another company which is owned by RS, his brother.

77. On 25 July 2020 the Volvo was captured on a covert camera at the Austral property driving in convoy with the BMW registration ending 78Z which was also owned by RS. The driver of the Volvo exited the vehicle and got into the BMW and left the location. The Volvo truck was observed to be progressively dismantled.

78. On 27 July 2020 RS reported the Volvo stolen. It was insured for $50,000. A claim was made with the insurer. The engine with number ending 947 was the only part of the vehicle recovered by police.

79. There is no evidence that the offender benefited from the insurance claim or had any role in making the claim, however, he admits that he was aware of the possibility that in accepting possession of the vehicle from RS that he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

80. The following facts relate to a Scania tipper truck registration ending 133 which forms part of the rolled-up charge, count 3. GB was the owner of that truck and a low loader trailer registration ending 906 as well as a Kubota excavator registration ending 057. All 3 vehicles were insured. GB purchased the truck for approximately $108,000.00, the trailer for approximately $27,000.00 and the excavator for approximately $60,000.00. At about 5:30 PM on 5 August 2020 GB parked those vehicles at an address in Clyde. When GB returned to that address at about 7:00AM the next day, the vehicles were missing, he observed the handle from the left side of the truck on the ground. GB reported all 3 vehicles stolen.

81. Police intercepted a telephone call between the offender and Aboulhaf on 6 August 2020 at about 2:37 PM. The caller asked the offender if he was interested in a Scania tipper with a trailer. The offender asked for photographs. At 8:42 PM the same day, RJR asked Aboulhaf if he “removed it”. Aboulhaf said that he had. The offender told Aboulhaf to remove the tracker and “sell it to Chris”. The offender also told him where to park the vehicle.

82. There is no evidence the offender facilitated or assisted in stealing the machine, however, by his plea, the offender admits that he was aware of the probability that the tipper truck, low loader and excavator he received from Aboulhaf had been stolen.

83. The following facts relate to a Toyota RAV4 with registration ending 64N, part of the rolled-up charge being count 1. NM was the registered owner of that vehicle. He bought the vehicle with finance and had it comprehensively insured. Some time prior to 8 PM on 28 July 2020 NM provided a key to the vehicle to the offender or one of his associates. Police intercepted a telephone call between the offender and Ayoubi on 27 July 2020 at 5:53 PM about the vehicle. A further telephone call was intercepted on 28 July 2020 at 8:30 PM, the offender told his wife that “he’s going to pick up the RAV4 and coming home”.

84. NM said that she had parked the vehicle outside an address at South Granville, leaving it locked and secured. Sometime after 8:00 PM, the offender picked up the RAV4 and drove it to the Austral property. At around 6:30 AM the next day NM discovered the vehicle was missing and reported it to the police before informing her insurer. NM said that she’d never been to the Austral address and did not know the offender. At the time the facts were prepared, the Crown was unaware as to whether NM had received money from the insurance company.

85. There is no evidence that the offender benefited financially from an insurance claim or assisted in the making of the claim, however, by his plea he admits that he was aware of the possibility that in accepting possession of the vehicle from NM he would be dealing with property that would be used to facilitate the commission of a serious offence, namely, fraud.

86. The following facts relate to a Yanmar excavator and trailer with registration ending 5RB being the charge the subject of Count 7. On 20 June 2020 the offender and his wife LI attended Complete Hire. The offender’s wife provided her driver’s licence to hire the excavator and trailer. They were due to be returned on 1 July 2020. In paragraph 146 of the agreed facts, a number of messages and telephone calls which were intercepted by the police are set out.

87. On 16 July 2020 an SMS from the hiring company told the offender that payment was 2 weeks overdue and totalled $3,532.28. He was told that if payment was not made by the end of the day the equipment would be reported stolen to the police. On 22 July 2020 a conversation took place between the offender and his wife at which time the offender told his wife that he had been contacted by Bankstown police. He said that he would provide the police with her number and instructed her to tell the police that Adam took the machine and that he is paying for it.

88. Then followed several other telephone calls between the offender, his wife and others concerning police attending the property and other matters not pertinent to this sentencing exercise save to observe that on occasions the offender was giving directions to others.

89. On 22 July 2020 the manager reported the excavator and trailer stolen. On the same day, police spoke to the offender’s wife over the phone. She told them that the equipment had been hired for a builder and had not yet been returned. Later in the day the offender’s wife called the police and said that the equipment would be returned the following day. On 23 July 2020 police again contacted the offender’s wife and she again said that the equipment will be returned the following day. About 7:30 PM that day, the police attended an address in Panania and spoke with the offender’s wife. She told the police that the builder associated with her husband had taken the equipment and was refusing to return it. She provided the police with the builder’s details.

90. At about 6 PM on 2 August 2020, AM (the builder whose details had been provided to the police), attended Bass Hill police station. He told the police that he was confused as to why his details had been provided. AM told the police that he was a plumber and last did work for the offender’s wife in March 2020 and had no contact with her since that time. He further said that he did not use excavators or trailers to undertake his work.

91. By his plea, the offender admits that he disposed of the excavator which his wife had hired from the hire company.

92. Those are the agreed facts.

Related offenders and parity

93. At Tab 7 of exhibit A is a table setting out a list of other offenders, their charges, and outcomes. Those offenders were charged with offences regarding single vehicle transactions, some of which comprise Count 1, 2, 3 and 8 in the present matter. There are said to be 12 related offenders/accused. I shall consider each of them in the order set out in the table.

Tony Wafta

94. TW was charged with publish to obtain false material to obtain advantage and false representation causing a police investigation. He pleaded guilty to both charges and was sentenced to a nine-month CRO for each. That offender did not have a criminal history.

95. This related to the offending concerning a vehicle with registration number ending 50X. For the index offender this forms part of the rolled-up charge which is count 1. Plainly the index offending is far more serious and justifies a much harsher sentence than that imposed on TW. The related offender was also entitled to a finding of good character.

Layal El Dadoun

96. LE was charged with publishing false material to obtain advantage and dishonestly obtaining advantage by deception. The charges were withdrawn at a hearing on 14 April 2021.

Michael Farah

97. MF was charged with publish etc false misleading material to obtain advantage and dishonestly obtaining a financial advantage by deception. He was convicted after a contested hearing in the Local Court on 30 May 2022 and sentenced to a three-year CCO for both charges.

98. He had a single prior conviction for driving while suspended.

99. This offender was selected by counsel for the index offender as an illustration of why, although the offending seems less serious, the section 5 threshold is crossed. Mr Farah was charged for the principal offence of publishing false misleading material to obtain financial advantage and dishonestly obtain financial advantage by deception. On 30 May 2022 he was sentenced to a three-year Community Corrections Order for both charges. Given that the index offender is an accessory before the fact one would expect, ordinarily, that his sentence will be less severe.

100. Nevertheless, it was submitted for Mr Arja that whilst count 2 and other counts (counts 4, 5, 6, 7 and 8) taken separately may not cross the section 5 threshold, it was accepted that “in the course of an aggregate sentence the most convenient methodology of applying totality and the aggregate sentence will be an indicative sentence for each of those matters that may very well be a term imprisonment.” It might also be said that the course of the offending conduct of the offender was part of a planned organised criminal activity so as to aggravate all of the offending pursuant to section 21A(2)(n).

101. There is also a practical consideration. Given that a full-time custodial sentence is warranted in relation to at least counts 1 and 3, then any sentence other than one of imprisonment to be served by way of full-time custody is unlikely to be of any effect. Put differently, the offender cannot serve a community-based sentence when in full-time custody meaning that no penalty other than one of imprisonment is appropriate.

102. In the circumstances, the offender will attract a more severe penalty than Mr Farah even though his offending, viewed in isolation, is less serious. I do not consider that this would give rise to a justifiable sense of grievance.

103. These remarks also apply to the other co-offenders.

Ibrahim Assaf

104. IA was charged with larceny as a bailee in respect of the Hitachi excavator. The facts relate to one of the rolled-up charges against the index offender in count 3. He was convicted and sentenced to a two-year CCO.

105. I find that the index offending is far more serious than the single conviction for which IA was sentenced thereby justifying a harsher sentence in respect of the index offender.

Layla Ismail

106. LI is the offender’s wife. She has been charged with larceny as a bailee and participating in a criminal group. LI pleaded not guilty. The matter was listed for hearing in Liverpool Local Court on 24 August 2022 and was adjourned to 2023.

Khaled Aboulhaf

107. KA was charged with disposing of a motor vehicle namely an excavator involved in the rolled-up charge which is count 3. He was sentenced to 12 months imprisonment from 25 February 2021. KA had a criminal history.

108. I find the offending engaged in by the index offender is far more serious than that of KA warranting a much harsher sentence.

Rami Suleiman

109. RS was charged with publish false material to obtain advantage and false representation causing a police investigation. The facts related to part of the rolled-up offences in count 1. RS pleaded guilty to both charges and following appeal in the District Court was sentenced to an 18-month CRO without conviction on both matters.

110. I find the index offending is far more serious than that involved in the matter of RS justifying a much harsher sentence. RS also had no criminal history and is entitled to a finding of good character.

Khaled Arab

111. KA was charged with one count of publish false material to obtain advantage. He has pleaded not guilty. The matter was listed for hearing on 15 July 22 in Liverpool Local Court. I am unaware of the outcome. Plainly, however, KA’s offending pales into relative insignificance compared to the offending of the index offender.

Mohamed Zirjawi

112. MZ was charged with a single offence of dishonestly obtain financial advantage by deception. He pleaded not guilty. His trial was part heard in the Liverpool Local Court and was set to resume on 22 September 2022.

Nadime Al Moustafa

113. NA was charged with a single count of dishonestly obtain financial advantage by deception. He pleaded not guilty. His trial is part heard in the Liverpool Local Court and was set to resume on 22 September 2022.

Mohamed Sobh

114. MS was charged with a single count of larceny as a bailee in respect of the excavator concerning JG. He was sentence on 18 August 2021 to a CCO for 18 months. I find that the index offending is a far more serious than the single offence committed by MS justifying a much harsher sentence.

Thomas Boga

115. TB was charged with a single count of dishonestly obtain financial advantage by deception. He pleaded not guilty. The hearing was on 9 August 2022. I am unaware of the outcome.

subjective Material

Criminal history

116. The offender has a number of driving offences between the period January 2013 and May 2013. He was also convicted of common assault in January 2018. In 2021 he was convicted of several offences regarding polluting land. There are no prior convictions for dishonesty offences. Whilst his criminal history does not aggravate the offending it does disentitled him to a finding of good character and any leniency which might otherwise flow from that finding.

Custodial record

117. The offender has been punished whilst in custody for 5 infringements comprising: fight or other physical combat; possession of a drug; stealing; damage or destroy property; and possessing a mobile phone, sim card and charger. These matters reflect poorly upon the offender’s prospects of rehabilitation.

118. Corrective Services did, however, issue 3 certificates to the offender. One being a certificate of acknowledgement demonstrating a positive attitude with a willingness to participate in a polite respectful manner (1 October 2020) and a certificate of attendance for the health survival program (9 November 2020). In addition, a work readiness reference has been generated (6 January 2021) indicating that the offender has successfully completed several competencies with the work readiness program.

Sentencing Assessment Report

119. A sentencing assessment report was completed on 10 June 2022. The author of the report had contact with the offender, his wife, brother and sister. Since coming to Australia in 2010, the offender has only held one job. He said that he intends to work at his uncle’s spare parts business upon release. He denied a criminal history in Lebanon prior to his immigration. He reported just one of the institutional misconduct charges, notwithstanding the record of five.

120. The offender denied knowing that he was participating in illegal activity and claimed he never would have been involved had he known. Within the report are references considered to be inconsistent with his statement that he was unaware of being involved in illegal activities.

121. The offender claimed the differences in laws between Lebanon and Australia contributed to his lack of understanding claiming that the laws in Lebanon were not as strict. His attitude was described as being one of minimisation and denial of the offences. He denied that he was in any financial difficulty or that the offences were financially motivated.

122. Further, the offender maintained that he was not aware of any insurance fraud taking place. He did not demonstrate any insight into the impact of insurance fraud on the wider community.

123. The assessor determined his risk of reoffending to be medium high.

The offender’s oral evidence

124. The offender gave evidence at his Sentence Hearing with the assistance of an Arabic interpreter.

125. The offender informed the court that his permanent residency visa has been cancelled, presumably because of this offending, and that that decision is currently being appealed.

126. The offender showed some remorse saying “I am wrong. I am regretting this, and I have lost my wife and children over these. I don’t see my kids.” (T9:16-17). He also assured the court that he would not engage in this type of offending again (T9:22-24).

127. However, when asked by me about understanding the harm this offending causes to the community, he replied “a lot of things, I don’t know, maybe those people have gained from that, and they’ve gained it from the insurance and that” (T10:39-40). In addition, the following Q&A took place at T11:6-14 between the Crown and the offender:

Q. And when these insurance claims are made do you know how that affects everybody else in the community? Not the people that brought you the cars, but everybody else?

A. INTERPRETER: Now I understand.

Q. What is it, how does it affect the community?

A. INTERPRETER: It affects the community that these things are very wrong, it shouldn’t be done.

128. Unfortunately, the offender did not provide insightful answers and indeed the Crown submitted that the offender failed to meet the second limb of remorse.

129. In closing, Counsel for the offender submitted:

On that aspect I can’t cavil with that, he was unable to express intricate pro-social impact or negative anti-social impacts upon this type of offending, however it should be noted that he is a man who comes from a non-English speaking background. He comes from a background of deprivation in Lebanon, and he has expressed remorse.

It might very well be a situation that he doesn’t have a finer grasp of those concepts due to his background and his education because, whilst he is able to acknowledge, and my submission is that he acknowledges that it is improper to steal motor vehicles, and he acknowledges his guilt and remorse for that, but what he’s unable to express is higher concepts like being a facilitator for this criminal conduct has the application of promoting criminal enterprises through the general community, and raises the rates of premiums for insurance claims across the general community, and that has a deleterious effect.

They’re somewhat complex concepts for a person from his background. To the extent of his limited ability to do so I would urge your Honour to give effect to what he is able to adequately explain within his background and his experience. My submission is that you would be able to make a finding of remorse.

130. I formed the impression that he lacked insight into the consequences of his offending thereby disentitling him to a finding of remorse.

Expert evidence

131. Exhibit 1 is a report by Mr Awit psychologist dated 27 June 2022. He diagnosed the offender with generalised anxiety disorder and substance use disorder. He took a history of the offender’s time growing up in Tripoli Lebanon. He was born about 7 years into the conflict which continued for about 15 years thereafter. The offender’s father was killed a month after his birth. His two siblings were moved to live with his paternal grandparents as their mother re-partnered and her husband did not want the children in the home. The psychologist recounted the following history:

Mr Arja was exposed to bloodshed, bombings, bullets being sprayed and the ongoing uncertainty of whether or not he would live. The city of Tripoli has continued to see hardships even post the Civil War. Outside the heavy bombings to do (sic) in the city by Israel in the 2006 Lebanon-Israeli war, the city has constantly seen battle due to the ongoing clashes between 2 Islamic sectors. Mr Arja was exposed to all this up until 2010 when he moved to Australia. Like many who have left Lebanon who resided in this area and similar areas, Mr Arja had developed a pattern of Anxiety symptoms, which had normalised in his own mind, given that many around him suffered the same. This pattern of Anxiety (which included hypervigilance, guardedness, periods of uncontrollable worry, being easily agitated, and sleep disturbance) has flared up over the course of his life.

132. He described his employment prior to the offending as running his own car wreckage yard. He said that he would buy vehicles and then would contact clients from around the world before stripping down vehicles for parts and exporting them. He said he’d run that business for 12 months before he was arrested in August 2020.

133. There was a history of alcohol abuse about 10 years ago. He also used cocaine from 2010 – 2014. He was placed in a detention centre after his Visa was cancelled following a driving offence. He described that as “the hardest experiences in his life”. He remained drug-free between 2014 and 2018 before being introduced to cocaine again and falling into regular use of that drug up until his arrest.

134. He married his wife the same year as moving to Australia in 2010 at the age of 28. His wife already had 2 children. They went on to have 3 further children.

135. He denied ever being diagnosed with anxiety in the past. He corrected a history provided in the Sentencing Assessment Report. Apparently, he said that he did not have financial difficulties and that was inaccurate. He has always struggled with finances.

136. The offender felt that his anxiety had worsened since incarceration as he misses his family. The psychologist noticed the signs of anxiety during the consultation.

137. Several psychometric tests were administered leading to the diagnoses to which reference was previously made.

138. The offender accepted responsibility for his actions when speaking with the psychologist saying that there was no excuse for his actions despite stating that the laws were somewhat different overseas. He said that he was remorseful. The psychologist expressed the following opinion:

…at the time of the offences, the offender’s conditions (anxiety) in combination with his substance use disorder (which is a psychological condition diagnosable in DSM-V), interacted with one another and lead to a mental impairment. This impairment has led to a temporary thought and mood volition which would have somewhat impaired the emotional well-being and judgment of Mr Arja during the offending periods.

139. A treatment plan was devised by the psychologist.

Formulation of sentence

Section 5 Threshold

140. Given the serious nature of the offending, I find that no sentence other than one of imprisonment is reasonable or appropriate in the circumstances. This was contended for by the Crown and conceded by counsel for the offender.

141. I note my remarks above in respect of those offences which of themselves may not justify imprisonment. See [97]-[102].

Discount for pleas

142. In respect of all the counts, save for count 3 which attracts a discount of 25%, the offender is entitled to a 10% discount.

Objective seriousness

Count 1

143. This rolled-up count involved 8 motor vehicles being delivered to the offender between 16 December 2019 and 13 August 2020 when he was arrested. He dealt with the motor vehicles by receiving them/being in possession of them.

144. He was reckless as to whether or not the owners of the vehicles would falsely report them stolen and make insurance claims. I find that the objective seriousness falls below the mid-range but not at the low range, having regard to the following factors:

1. the duration of the offending, nearly 9 months;

2. the number of vehicles involved, namely 8;

3. the insured value the property involved exceeded $156,000.00;

4. although there is a clear inference that the offences were committed for gain there is no evidence as to what money, if any, the offender made from this offending; and

5. the offending is characterised by the fact that the instrument of the crimes was fraud in one form or another which itself is serious offending.

Count 2

145. Count 2 relates to the motor vehicle with registration ending 44H which the offender received from MF. The vehicle was reported stolen and an insurance claim of over $50,000.00 was made. The offender took possession of the vehicle knowing that the owner indicated they would make a fraudulent insurance claim. I accept the Crown’s submission that the objective seriousness of this offending falls just below the mid-range and identify the following factors:

1. the duration of the offending was relatively short. That is, the time between when the vehicle was received at 11:09 PM on 20 January 2020 until the vehicle was reported stolen the following morning;

2. the offender’s role as an accessory before the fact was an important and essential one; and

3. the value of the claim exceeded $50,000, although, it is not clear how much, if anything, the offender was paid for his role.

Count 3

146. This is a further rolled-up offence relating to the offender taking possession of 6 excavators, two trucks and a low loader trailer and being reckless as to whether they had been stolen by one of his associates. The Crown submitted, and I accept that the objective seriousness of the offending falls slightly below the mid-range. The following factors characterised the offending justifying this finding:

1. the duration of the offending was over a period of about 5 months;

2. the pieces of property dealt with was 8;

3. whilst the estimated value of the items is not known it might be inferred that it was substantial, noting that the Scania truck was purchased for $108,000.00, the Kubota excavator $60,000.00 and the low loader trailer was purchased for $27,000.00. They are just 3 of the 8 pieces of machinery the subject of this count;

4. each of the vehicles was, however, recovered virtually intact;

5. the owners of the vehicles relied on the excavators to conduct their businesses which was most probably affected by the offending;

6. the manner of dealing with the Hitachi excavator and the Komatsu excavator involved some effort and planning as they were to be shipped to Lebanon in a container; and

7. there is, however, no evidence of what financial benefit the offender received in respect of his role.

Count 4

147. This charge relates to motor vehicle registration ending 70A. Shortly after the offender received the vehicle a fraudulent insurance claim was launched. There is no evidence of the value of the vehicle. I find the offending falls just below the mid-range for the following reasons:

1. the offender’s role was an essential element of the overall offending;

2. the net duration for which the offender was the accessory was between approximately 30 March 2020 on 14 April 2020;

3. there is no evidence as to the value of the fraudulent insurance claim; and

4. there is no evidence as to what financial benefit, if any, the offender obtained.

Count 5

148. This relates to the motor vehicle with registration ending 1JJ. The offender received the vehicle on 20 May 2020. It was reported stolen the next day and an insurance claim was thereafter made. I find the objective seriousness of the offending falls just below the mid-range having regard to the following factors:

1. the offender’s role was an essential one. He facilitated the making of the fraudulent insurance claim;

2. the duration of offending was short. The time between receiving the vehicle and the claim being made was a day or two;

3. there is no evidence as to the value of the insurance claim; and

4. there is no evidence as to what financial advantage, if any, the offender obtained.

Count 6

149. This relates to the attempted theft of the Kubota excavator on 14 June 2020. I accept the submission for the Crown that this offending falls towards the lower end of the range of objective seriousness, having regard to the following features:

1. there is no evidence of the value of the vehicle;

2. the offender cut wire fencing to gain access to the vehicle;

3. the attempt to take the vehicle was unsuccessful;

4. the offending was for a short duration; and

5. the offending does not appear to have involved any detailed planning.

Count 7

150. This count relates to the hired Yanmar excavator. It was hired by the offender’s wife on his direction. I find the offending falls at the mid-range of objective seriousness, having regard to the following features:

1. the excavator and the trailer have never been recovered or returned to their owner;

2. the owner suffered a financial loss both as to the value of the machinery and the unpaid fees; and

3. the offender attempted to conceal his involvement in the offending, blaming an innocent 3^rd party, the plumber.

Count 8

151. This relates to an excavator stolen by Sobh who delivered it to the offender at his Rossmore property. I find the offending of receiving a stolen motor vehicle falls just below the mid-range having regard to the following features:

1. there is no evidence as to the value of the machinery, although likely to be substantial;

2. this was one of the items placed into the shipping container reflecting some degree of planning and organisation on the part of the offender; and

3. the machine was recovered by police and presumably returned to its owner.

Aggravating factors

152. I decline to find any aggravating features under section 21A (2) of the Crimes (Sentencing Procedure) Act. Whilst some of those factors may exist, either the evidence does not permit a finding to the requisite degree or, alternatively, they are implicit in the offending.

Mitigating factors

153. The offender’s guilty pleas are a mitigating factor.

154. I have already provided my findings as to remorse at [130]. Given the lack of insight, I consider both his prospects of rehabilitation and risk of reoffending to be guarded.

Psychiatric condition

155. There is no reason not to accept the opinion of the psychologist that the offender suffers anxiety in combination with substance use disorder. As is apparent from the extract of the opinion above, the psychologist attempted to draw a connection between the offending and his mental impairment. It was the anxiety in combination with the use of cocaine which caused the impairment.

156. The psychologist does not express an opinion as to whether the psychiatric condition (anxiety) would in and of itself have been sufficient to have contributed in a material way to the offending.

157. Self-intoxication by the use of cocaine cannot be taken into account as a mitigating factor. I decline, for these reasons, to find that the offender’s psychiatric condition materially contributed to the offending.

Moral culpability

158. It is apparent that the offender suffered a challenging childhood in which he was exposed to extreme violence although, according to the psychologist, that had become normalised in the offender’s mind. I accept that it is a form of childhood deprivation which slightly impacts the offender’s moral culpability.

159. This moderation of moral culpability, however, does not, in my opinion, impact the objective seriousness of the offending or reduce the need for both general and specific deterrence. It is a factor to which I have had regard in the process of instinctive synthesis.

Special circumstances

160. I find special circumstances exist having regard to the offender’s challenging upbringing, his psychiatric condition (anxiety), that this will be his first lengthy time in custody and the need for the treatment recommended by Mr Awit. The non-parole period will be adjusted to afford this offender a longer than usual period on parole.

Purposes of sentencing

161. The purposes for which a court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence;

2. to prevent crime by deterring the offender and other persons from committing similar offences;

3. to protect the community from the offender;

4. to promote the rehabilitation of the offender;

5. to make the offender accountable for his or her actions;

6. to denounce the conduct of the offender; and

7. to recognise the harm done to the victim of the crime and the community.

162. In my opinion, the need for deterrence, both general and specific, is significant to discourage the conduct of this offender and other offenders. It is also essential that the sentence is adequate to reflect the criminality involved.

163. I also recognise the harm done to others in the community including insurance companies and owners of property who either lost their property or were deprived of its use for a period.

Aggregate sentence

164. I intend to impose an aggregate sentence. Before doing so it is necessary to provide indicative terms in respect of each count.

COUNT	CHARGE	MAXIMUM PENALTY	OBJECTIVE SERIOUSNESS	INDICATIVE TERM After discount
1	Recklessly deal with property that would become an instrument of crime (rolled up).	10 years imprisonment.	Below mid-range but not at the lowest end.	2 years 6 months 10% discount
2	Accessory before the fact to publish. statement.	5 years imprisonment.	Just below the mid-range.	18 months 10% discount
3	Recklessly deal with the proceeds of crime (rolled up).	10 years imprisonment.	Just below the mid-range.	2 years 25% discount
4	Accessory before the fact to publish a full statement.	5 years imprisonment.	Just below the mid-range.	18 months 10% discount
5	Accessory before the fact to publish a full statement.	5 years imprisonment.	Just below the mid-range.	18 months 10% discount
6	Attempt to steal a motor vehicle.	10 years imprisonment.	Towards the lower end.	2 years 10% discount
7	Larceny as a bailee.	5 years imprisonment.	At the mid-range.	18 months 10% discount
8	Receive stolen motor vehicle.	12 years imprisonment.	Just below the mid-range.	2 years 10% discount

Totality

165. In sentencing the offender for multiple offences, the aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In Johnson v The Queen the High Court stated at [18]:

In Mill v The Queen (1988) 166 CLR 59 at [63] Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing … at pp 56–57 [footnotes omitted]:

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[’]; ‘when … cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.

166. After fixing an appropriate sentence for each offence, it is necessary then to consider questions of accumulation or concurrence and totality. In my opinion given that the offending represents a course of conduct over a period of about 6 months there ought to be a moderate degree of concurrency with some accumulation.

Conviction

167. Mr Ajar you are convicted.

Sentence

168. In respect of the convictions, I impose a total aggregate head sentence of 5 years imprisonment with a non-parole period of 3 years imprisonment meaning that:

1. allowing for time served, the Head Sentence commenced 13 August 2020 and expires 12 August 2025;

2. the non-parole period of 3 years commenced 13 August 2020 and expires 12 August 2023 at which time the Offender will be eligible for consideration of parole.

**************************************

Decision last updated: 27 September 2022