R v Biber

[2023] NSWDC 292

District Court

New South Wales

Medium Neutral Citation:

R v Biber [2023] NSWDC 292

Hearing dates:

11 May 2023

Date of orders:

15 May 2023

Decision date:

15 May 2023

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

A 2-year Community Corrections Order is imposed commencing 15 May 2023 and expiring on 14 May 2025.

Conditions of the CCO are contained at [51].

Catchwords:

CRIMINAL LAW – COMMONWEALTH – SENTENCE – Contravention of Control Order

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Category:

Sentence

Parties:

Director of Public Prosecutions (Cth) (Crown)
Mehmet Biber (Offender)

Representation:

Counsel:
Mr Baldeo (Crown)
R Khalilizadeh (Offender)

Solicitors:
Solicitor for Director of Public Prosecutions (Cth)
Sydney City Crime (Offender)

File Number(s):

2022/124203

SENTENCE

1. Mr Biber will have a wait to find out what the sentence is as there are a number of matters I need to put on the record before I can tell him what the sentence is.

2. The offender, Mr Biber, stands to be sentenced having pleaded guilty to the following charge:

That between about 2 October 2021 and 30 April 2022 at Sydney and elsewhere, he did, knowingly or believing or being reckless as to the fact that a control order was in force in relation to him, intentionally contravened the order.

3. That is an offence under s 104.27 of the Commonwealth’s Criminal Code and has a maximum penalty of five years’ imprisonment. The offence is a Commonwealth offence and the offender is to be sentenced in accordance with the Commonwealth’s Crimes Act and in particular, having regard to Part 1B of that legislation and the terms of section 16A of the Act and the fact that this offence is a terrorism offence.

Agreed Facts

4. One matter that I am to have regard to is the nature and circumstances of the offence which are, essentially, the facts encompassed by the offending. The facts here are agreed and the following is taken from the agreed facts. On 27 April 2018, the offender was convicted of entering a foreign country, namely Syria, intending to engage in hostile activity contrary to a provision of the Crimes (Foreign Incursions and Recruitment) Act and was sentenced to four years and nine months’ imprisonment with a non-parole period of two years and six months. The offender was released at the expiry of his head sentence on 2 August 2021.

5. On that date, subject to orders made by Justice Nicholas of the Federal Court of Australia on 29 July 2021, the offender was served with what is called an interim control order, issued on 29 July 2021, pursuant to section 104.4 of the Commonwealth’s Criminal Code. That order covered the period from 2 August 2021 to 27 October 2021. Upon service of that order, the Australian Federal Police provided the offender with a notice of explanation advising him of his obligations and of the prohibitions and restrictions that had been imposed in the control order and including information that it is a criminal offence to contravene the terms of the control order.

6. On 27 October 2021, after a confirmation hearing in relation to the interim control order, Justice Bromwich of the Federal Court of Australia, confirmed the interim order with a minor variation. On 28 October 2021, a copy of that confirmed control order was provided to the offender along with an explanatory document outlining his obligations under the order and noting it was a criminal offence to contravene any part of the order. The relevant control contained within the relevant control order imposed on the offender, at the time of offending, stipulated as follows: It was control number 9. The offender was prohibited from carrying out the following specified activities: including in respect of your work or occupation, namely undertaking paid work without first notifying the AFP superintendent. And control 9 also provided that in notifying the AFP superintendent, the offender was to contact the AFP superintendent by phone or in writing and provide information about the proposed work including details of the employer, the details being set out in the control, and the nature of the work that would be undertaken.

7. On 3 August 2021, the day after the interim control order came into force, the offender commenced taking notes on his electronic Google Keep application in a document titled, “Interim Control Order Crucial Points”. And one of his notes reflected what was in control 9.1 and 9.2. The agreed facts are that he was compliant with control 9 in relation to notifying the AFP of paid work, including during the offence period. He notified the AFP that he had engaged in ad-hoc or one-off contract-based work as a carpenter, labourer or excavator and he notified the AFP superintendent on ten occasions of the type of work, location and time period and name of the employer.

8. On 16 August 2021, he notified the AFP superintendent via email that he was intending to commence an online business via Amazon and the details of that email and a follow-up email in relation to that endeavour are set out in the agreed facts. I will not read them onto the record, but they occurred on 16 August and 18 August 2021. Between 2 October 2021 and 30 April 2022 the offender and an associate, Tolga Sifsi imported luxury and designer goods from overseas into Australia, advertised their sale on Facebook and sold them to customers in Australia. The offender and his associate were not charged, however, in relation to any offences contrary to the Trademarks Act.

9. In summary, during October and November 2021, the offender and his associate undertook the conduct to set up the counterfeit business. On 17 October 2021, the offender and his associate agreed that the associate would purchase the stock for the business upfront and the offender would pay back the half share in profits. On 18 October 2021, the offender and his associate agreed to call their Facebook page, “Designer Collections” from which to sell the counterfeit items and the offender said his wife could make a logo. They later agreed to change the name to “Designer Haus Official”.

10. On 20 October 2021, the offender offered to contact his cousin for advice on the most effective way to import counterfeit products without being picked up by Australian Customs officials. On 12 November 2021, the associate added the business name, “Designer Haus Official” to his pre-existing Australian business number. On 15 November 2021, the associate opened an ANZ bank account with the name, “Tolga Sifsi trading as Designer Haus Official”. On 2 October 2021, the offender sent an inquiry to a supplier called Sunny Zu on the Alibaba website. Alibaba is apparently an online wholesale platform for eCommerce and retail used by suppliers and buyers globally. As set out in the agreed facts, the exchange, basically the offender is told that what can be supplied in relation to ladies handbags that is not an original, that he was sent a photograph and he said:

“Looks good, how is the packing?”

11. To which Sunny Zu said:

“Same as the original.”

12. The offender said to Sunny Zu in this exchange:

“I will be requesting a product on demand by customers. What is the shipping cost and time to Villawood, Australia. And then, depending on popularity, I’ll be ordering larger quantities of stock.”

13. On 2 October 2021, the offender transferred 220USD to Sunny Zu to purchase a replica Louis Vuitton Multi-pochette New Wave handbag. He confirmed payment and said:

“Thank you. I hope everything goes well so we can continue a long business relationship.”

14. On 14 October 2021, the handbag arrived in Australia from a Hong Kong address, addressed to the offender. On 18 October 2021, it was delivered to his residential address in Sydney. On 20 October 2021, a phone call between the offender and his associate, Sifsi, was intercepted by the authorities and it is set out in the agreed facts. Part of that phone call contains the following, the offender saying:

“You need to understand, I cannot be directly officially involved. You understand, don’t you, Sifsi?”

15. And later, the offender:

“Yeah, because included in the conditions that are mentioned there, you need to tell what work you are doing, you know what I mean?”

16. Sifsi:

“That’s all right, that’s good.”

17. The offender:

“So I’m not working in this, I’m just giving you opinion, advice and shit, you know what I mean.”

18. Sifsi said:

“Well, so far yes, well so far we’re not doing, we haven’t done nothing anyway.”

19. The offender said:

“Mmm.”

20. And the associate:

“It’s already search.”

21. And the offender said:

“So yeah, when it comes to that.”

22. Essentially, those are the relevant parts of the conversation.

23. On 18 January 2022, the offender advertised the handbag that he had received for sale on his personal Facebook account and between 18 January 2022 and 24 January 2022, he corresponded with multiple potential customers on Facebook about the sale of the handbag and sent messages including that it was not authentic, one-to-one quality:

“I can get designer products you like, but if I don’t have stock I have to special order. And by the way, we have any designer product you want, just send me a picture of what you like and I can give you a price.”

24. On 18 January 2022, he drove to a potential customer’s house to show them the handbag. And between 18 and 24 January 2022, he engaged in negotiations with a customer and agreed to sell her the handbag for $350. He received $350 into his personal bank account from the customer on 24 January 2022. And on 25 January 2022, he mailed the handbag to the customer’s address via a courier service and it was successfully delivered on 30 January. On 27 January 2022, the offender set up the Facebook page called “Designer Haus Official” on which to sell counterfeit luxury items. On 8 February 2022, the AFP executed a warrant at his residence for the purpose of monitoring the offender while he was subject to a control order. On 11 February 2022, he sent a message on Facebook Messenger to his associate, Sifsi, saying:

“Honestly, I want out as soon as possible. After last search couple of days ago, they took photos of the pics on my laptop of the merch.”

25. Meaning merchandise, no doubt:

“They didn’t say anything. I don’t want to even have it on my mind. I want to wipe it clean as soon as possible. I’m outie 5,000.”

26. At no point, when the offender was subject to the control order, did he notify the AFP superintendent that he was undertaking work, namely a business to import, advertise and sell counterfeit luxury items. On 30 April 2022 a search warrant was executed on his residence and that of his associate. He was taken to Granville Police Station and was charged and participated in a record of interview. He suggested it was difficult to comply with the order, that he was not engaged in traditional employment and that the work occurred over a long period and he had forgotten it.

Objective seriousness

27. Turning then to my assessment of the objective seriousness of the offence. Offences of this type are always serious. That is because of the legislative purpose behind the provisions that permit a control order to be made. Section 104.1 of the Code indicates that the legislative purpose behind the imposition of such orders is protective. The legislative purpose is to protect the public from a terrorist act, prevent the provision of, support for, or the facilitation of a terrorist act, and to prevent the provision or the facilitation of the arrangement of the engagement in a hostile activity in a foreign country. Terrorism threatens the very existence of Western Liberal Democracies, the type of government we are all fortunate to live under. The courts must do all that they can to protect the public from such threats to our very way of life.

28. When sentencing for terrorism offences, substantial weight must be given to considerations of the protection of the public, punishment of the offender, denunciation of the offender and deterrence. Here, there could be no doubt, given the intercepted phone call on 20 October 2021, that the offender knew he should have reported what he was engaged in to the AFP under the terms of the control order, yet chose not to do so. This is not a case of the offender not understanding the controls of the order placed upon him or of him being reckless as to those controls. The facts show that the offender invested money in what was, in effect, a business he and his associate set up, conducted research, created a Facebook page, communicated with suppliers and customers and travelled to a customer’s home to, in effect, negotiate a sale.

29. The prohibition in control 9 was on “undertaking paid work without first notifying the AFP superintendent.” I consider there is some force in the submission made on the offender’s part, that much of what the offender engaged in was, in essence, preparation for the one sale of the handbag that he effected. There is nothing before the actual sale of that handbag that could really be said to amount to paid work given the agreed facts here. While it appears that the offender ceased any activity associated with the business from 11 February 2022, the offence continued until the day of his arrest because of the continued failure to notify the AFP Superintendent of his conduct.

30. All the evidence before me is to the effect that the offender engaged in the business activities due to his financial situation and the financial situation of his family. While this is not a justification for breaching the order, it puts the breach in its realistic context. I also note, the offender was not charged with any infringement under the trademark or customs legislation. There is also no suggestion in any of the material that his conduct was in any way related to a proposed terrorist act or the funding of a terrorist act or organisation.

31. In relation to sentencing for this type of offence, it is the deliberate nature of the contravention of the control order that has weighed heavily with me. It is because it is a deliberate breach of the order that the offence is a serious example of such an offence.

The offender’s subjective case

32. Turning then to the offender’s subjective case. His date of birth is 15 August 1992, so he is currently 30 years of age, still a relatively young man. On 27 April 2018, he was sentenced, as I mentioned earlier, to a term of imprisonment of four years and nine months with a non-parole period of two years and six months for an offence of enter a foreign state with the intention of engaging in hostile activity in that state, being to engage in armed hostilities. He served the whole of that sentence and was not released to parole. That is, he was in custody during the period 3 November 2016 to 2 August 2021. Apart from that offence, he has little by way of a criminal record. His record, however, does not entitle him to any significant leniency here.

33. I have before me the following documentary material. A sentencing assessment report dated 4 May 2023. A psychological report by Chafic Awit, a registered psychologist. Letters from the offender, his wife, the offender’s father and his current employer. The offender did not give evidence on sentence, although his father did, who confirmed the content of the psychological report in relation to the background of the offender. I have had regard to the fact that the offender did not give evidence on sentence in assessing what weight to give to things he has said to third parties.

34. In terms of his family background, the offender was born in Sydney and is the elder of two siblings. He grew up in a loving and supportive home environment and is close to both his parents. The offender is married and he and his wife have two daughters, one aged nine years and the other four months. The author of the Sentencing Assessment Report considered that the offender and his wife shared a pro-social relationship and that the offender has a large supportive family network. In terms of the offender’s education, he completed year 11 and then completed a TAFE certificate in carpentry and joinery which was the beginning of an apprenticeship. In recent times, he completed an online eCommerce course. He was first employed at McDonald’s when a teenager. He has also had short periods working as a cabinetmaker and a courier before travelling to Turkey and ultimately Syria where he committed the offence for which he served a substantial sentence. He currently is employed as a truck driver and has been for some four months.

35. There is a letter before me from his employer who states that during that four-month period the offender has demonstrated honesty, trustworthiness, reliability and responsibility in performing his role.

36. He has no history of alcohol or substance abuse.

37. The psychologist records the offender telling him that the first three years of his prison sentence he spent in what is referred to as a supermax prison, which the offender considered was one of the worst periods of his life. He claimed to the psychologist that since being released from custody he has struggled to find a role that could properly support himself and his wife and children.

38. Mr Awit, the psychologist, considered that as at the time of his assessment of the offender, he had mild depression and moderate anxiety and felt more anxious in the period leading up to the offence due to his financial circumstances at that time. The psychologist considered that the offender currently met the diagnostic criteria for mild adjustment disorder with moderate anxiety. The psychologist expressed the opinion that the offender’s anxiety condition, “did play a role in the offence.” Mr Awit considered that while the offender’s symptoms were only mild, their impact on decision-making could be profound. I found the psychologist’s explanation as to why a mild anxiety disorder could be causally connected to the commission of the offence under consideration here to be far from convincing. Here, there was a deliberate decision for some considerable period of time to fail to notify the AFP Superintendent of conduct which the offender knew breached his control order. I do not accept that his mild anxiety disorder was somehow a cause of his commission of the offence.

Remorse

39. The evidence before me is somewhat conflicting in relation to the offender’s level of remorse for the offence. The Sentencing Assessment Report records that he justified his actions, reporting to the author of that report, that he was unaware that his actions contravened his control order. That report also records that upon probing, the offender took responsibility for his actions and stated he should have been more aware. Those statements are inconsistent with a recorded telephone call set out in the agreed facts, where it is clearly acknowledged by the offender that he knew he was breaching his control order. The Sentencing Assessment Report also records that the offender initially focused on the ramification of the offence for himself and his family. However, after probing, he was said to be able to identify how his actions could have caused potential harm for the wider community. In his letter to the Court, the offender purports to express his remorse for the offence and says that he understands that his actions have caused inconvenience and frustration to the authorities.

40. His wife, in her letter, records that the offender has expressed to her how sorry he is for the offence and for putting the family in a precarious situation. His father also, in his letter and in his evidence, indicated that the offender had expressed sorrow for his offending and for the position he has put his family in. I have also had regard to his early plea of guilty as some indication of remorse.

41. Overall, the evidence suggests that there is limited remorse here. Clearly, the offender has expressed sorrow for putting his family in the difficult situation where they again face the prospect of him being incarcerated. I have concerns, though, as to whether there is any real insight by the offender as to the serious nature of his breach of the control order and why, from the authorities and the Court’s point of view, what he did was a serious offence.

39. The offender entered his plea of guilty in the Local Court. A person who pleads guilty to a Commonwealth offence in the Local Court and who is committed for sentence to the District Court should generally be provided with a 25% discount of their sentence for the utilitarian value of their plea. See Kaurasi v The Queen (Cth) [2020] NSWCCA 253. I will allow the offender a 25% discount of his sentence for his early plea of guilty reflective of the utilitarian value of the plea. Sometimes, an early guilty plea, together with other factors on sentence will change the nature of the sentence to be imposed. See R v Thompson & Houlton (2000) 49 NSWLR 383 at paragraph 160.

40. Under section 16A subparagraph (2)(p) of the Crimes Act the Court is to take into account the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants. It is no longer necessary for an offender to establish that hardship to third parties, in particular to family members, is exceptional before it can be taken into account in determining the appropriate sentence to impose when sentencing for a Commonwealth offence. See Totaan v The Queen [2022] NSWCCA 75. Here, the evidence on balance satisfies me that the offender engaged in the offence in order to provide for his wife and young family, given the difficulties he had experienced in finding employment after having spent almost five years in custody.

41. His family has limited financial means, given all of the evidence before me, with the offender’s current employment being what supports the family. There are two young children, one of whom is very young. The offender’s father and his wife have supported the offender’s wife and her then single child while the offender served his sentence. The evidence suggests that if the offender was incarcerated, they could not now financially support the offender’s young family which has expanded. There is no expert evidence before me as to the impact the offender’s incarceration would have upon the children. Common-sense suggests, however, that it is likely to be significant. In particular, when I have regard to the content of the offender’s wife’s letter and the older child’s concern at being separated from her father yet again, I consider that the hardship to the offender’s family that would be caused if he was incarcerated for this offence to be very significant and that has weighed heavily with me.

Rehabilitation

45. I think, overall, the offender has good prospects for rehabilitation. He has a supportive family and as of now, obtained full employment. I also note he is no longer the subject of a control order and fully complied with his bail for a significant period. In coming to that conclusion, I note the offender was assessed in the Sentencing Assessment Report as having a medium to low risk of re-offending. I also note that the offender has spent four days in pre‑sentence custody before he was released to bail and has now been on bail since 4 May 2022.

Imposition of Sentence

46. The maximum penalty for the offence has been taken into account as a legislative guidepost.

47. General deterrence is always an important sentencing principle to give weight to when sentencing for any terrorism offence, and the current offence is no exception. As I mentioned earlier, the current offence creating provision has at its heart, the protection of the community from conduct by those who are tempted to engage in terrorism offences. Specific deterrence is also a relevant factor when sentencing for such offences. But given the offender has spent almost five years in gaol for his earlier offence and has good prospects of rehabilitation, in my opinion, specific deterrence does not have an overly significant role to play in relation to this sentence.

48. Section 17A of the Crimes Act provides that a Court should not pass a sentence of imprisonment on any person for a Federal offence unless the Court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all circumstances of the case. I have considered the cases that I was referred to by the parties in relation to sentencing for this type of offence that has occurred to date. There is a limited number of such cases but I am conscious that all offenders to date have received a sentence of imprisonment even where it might be thought that the conduct engaged in was not particularly serious. See The Queen v Mo(No 1) [2016] NSWDC 144 by way of example. The Crown argued that the only appropriate sentence here was one of imprisonment, while counsel for the offender argued that it was not the only appropriate sentence.

49. It must always be remembered that justice is individual and sentencing remains a task of instinctive synthesis guided by established sentencing principles, factors that can pull in different directions. When I weigh up the matters I have discussed in these remarks, despite the serious nature of the offence and the importance of general deterrence in the sentence, I have arrived at the conclusion that it is not the case that no other sentence apart from imprisonment is appropriate in all the circumstances of this case. In coming to that conclusion, I have given considerable weight to the nature of the offender’s breach, his early plea of guilty, his good prospects for rehabilitation and the hardship that would be inflicted upon his wife and young children if he was to be imprisoned.

50. I note the Crown conceded that as a matter of law it was open to me to impose a community correction order by operation of section 20AB of the Crimes Act. That is the type of sentence that I consider is appropriate in all the circumstances of this case.

Sentence

51. Mr Biber, please stand. You are convicted of the offence of knowingly breaching your control order. I order that you enter into a community corrections order for a period of two years commencing today, 15 May 2023 and expiring on 14 May 2025. The conditions of the order are:

1. That you not commit any further criminal offence.

2. That you appear before this Court if called upon to do so during the term of the order.

3. You are to perform 250 hours of community service.

4. During the first eight months of the order, you are not to leave your residence - and I will come back to the details of the residence, your counsel might ascertain that now - you are not to leave your residence during the hours of 8pm and 6am except for a medical emergency or to engage in employment. You are to present yourself to the door of the premises if required to do so for the purposes of a compliance check by an officer of the New South Wales Police or the AFP. You are to be supervised by Community Corrections. You are to contact Parramatta Community Corrections office by 4pm tomorrow, 16 May 2023.

52. You should understand, sir, that you will be in the community subject of that order for two years. If you were to breach the order and not comply with any of the conditions, you can expect to be brought back to this Court and a far more severe sentence imposed.

**********

Decision last updated: 03 August 2023