R v Christine Saliba

[2010] NSWDC 277

CITATION:	R v Christine SALIBA [2010] NSWDC 277
HEARING DATE(S):	15 October 2010, 29 November 2010
EX TEMPORE JUDGMENT DATE:	29 November 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Haesler DCJ SC
DECISION:	Count 1 - Proceeds of crime offence. Section 12 suspended sentence 1 year 8 months Count 2 - Make false statement to obtain money. Section 9 good behaviour bond 3 years
CATCHWORDS:	Proceeds of crime - Make false statement to obtain money - Operation Schoale
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
PARTIES:	Regina Christine Saliba
FILE NUMBER(S):	2008/191672
COUNSEL:	Ms W Abraham QC with Mr P Krisenthal (Offender)
SOLICITORS:	Ms F Gray (Director of Public Prosecutions) Mr W O'Brien (Offender)

SENTENCE

Introduction

1. Operation Schoale, conducted by the New South Wales Crime Commission and the New South Wales Police, led to the arrest of a number of people connected to the importation and supply of large amounts of cocaine and the disposal of the proceeds of those crimes. One of the people charged with cocaine offences is the offender’s husband.

2. On 29 July 2008 the offender was arrested and charged with two offences before the Court. The first, recklessly deal with the proceeds of crime pursuant to s 193B(3) of the Crimes Act 1900, involved an amount of $861,740. The maximum penalty for this offence is ten years imprisonment. The offence occurred between November 2005 and July 2008. The second offence, make a false statement to obtain money pursuant to s 178BB(1) of the Crimes Act now repealed, carried a maximum penalty of five years imprisonment. That offence occurred between December 2006 and April 2007.

3. The offender indicated a plea of guilty midway through committal proceedings. I am informed and accept that her plea had considerable utilitarian benefit. It is not in dispute that her sentence should be reduced by twenty-five per cent to take account of that early plea.

4. There are Agreed Facts before the Court. I will not repeat them but will make a brief summary.

The proceeds of crime offence

5. The offender had employment requiring some skill and providing considerable remuneration. However, in May 2006 she stopped working. Her husband was also not working or at least not in paid employment. During the period noted in the first charge money was dealt with in three ways. Firstly, $158,270 was deposited into the offender’s bank account. Secondly, sums of $109,400 and $8,750 were found at the offender’s home, and later $2,000 and $38,000 in US currency was found at her parents’ home in bags owned by the offender. Thirdly, over $280,000 was spent by the offender on consumable items including travel and her wedding. The source of this money was her husband. The Agreed Facts note the offender did so in circumstances where she was reckless as to whether the funds given to her by her husband were the proceeds of crime. The amount of money involved, the length of time whereby the money was used and the ways in which the money was dealt with underline the seriousness of this offence. One only has to indicate that there was cash found by police on 1 March 2007 but later, on 25 July 2007, the US currency was found by police.

The make false statement to obtain money offence

6. In relation to the s 178BB(1) matter, as I have indicated, the offender had no job since May 2006 but in order to purchase property in December 2006 she applied for a loan from the National Australia Bank in the sum of $660,000, half the purchase price of that property. She represented she was employed. Arrangements were made with others for the interest on money borrowed from her husband to be paid as wages to enable it to look legitimate. She signed documents and included with her application false documents. Although there was no loss to the bank and there was money to cover the loan, the arrangement had the serious potential to undermine the mortgage loan system.

7. Evidence before the Court in the statutory declaration of the offender, Exhibit 4, indicates that arrangements have been made with the Crime Commission to pay the full amount in relation to the first count.

Subjective matters

8. Apart from these offences, the offender was a person of good character. How she came to be involved is revealed in the defence exhibits, particularly the report of Ms Player, which is Exhibit 2. That report sets out her background, her history with her own family, her father’s relationship with her mother and matters personal to the offender, which are set out in detail and which I will not repeat. The report indicates her vulnerability and her acceptance, because of that vulnerability, of dominance and control by her husband. Her husband appears to have fulfilled the role similar to that of her father with her own mother. He was domineering and controlling and encouraged her dependence on him. There was violence and verbal abuse. Although these matters are set out in a report, and I have not heard directly from the offender, some of this history is confirmed independently by the telephone intercepts which were Exhibit 5 in the proceedings.

9. Dependence and low self esteem were related to her personal circumstances and were compounded by an anxiety problem which was noted by Dr Grace, Exhibit 1, who commenced treating the offender before her arrest.

10. Ms Abraham QC, who appeared for the offender, described this offence as “one of circumstance”. By that phrase she directed the Court to the context in which the offending occurred, that is: as a dependent wife in a controlled relationship and subject to verbal and, on occasions, physical abuse; she was disposed to acceptance of this relationship by her own family history. She was accepting of her husband’s explanation. That is reflected in the charge before me, one of recklessness not deliberate dealing in the proceeds of crime. It explains to some extent her failure to question the cash and the money. I note, however, that she is an intelligent woman and well educated and able to manage and administer both her household and other aspects of her life.

11. The Solicitor Advocate for the Director of Public Prosecutions notes that this recklessness is reflected in the offence itself. She notes, however, that the offending continued over a lengthy period, even after the earlier arrest of her husband for offences involving the possession of large sums of money and, after money was seized from her, she still had American currency at her parents’ house.

12. The second offence, as Ms Gray points out, involved more than wilful blindness, it required active participation. In relation to the first offence, Ms Gray also notes the large amounts spent on consumables, despite the fact that she and her husband had no obvious jobs. The amounts involved indicate potential harm to the community of offences of this nature. I accept that submission.

13. Understanding of the offender’s motive or explanation for her behaviour does mitigate the offence to some degree but it does not appreciably reduce the seriousness of what was done. The amounts were high. Although this is important, it is not determinative of the ultimate penalty. It cannot be gainsaid that these were serious offences, particularly the first count, and of such seriousness that would ordinarily carry a custodial sentence. This is a case of active involvement in dealing with the sum, not simply warehousing it for others for a fee.

Purposes of sentencing

14. The Court must, by its sentence, recognise the harm the offences cause the community. Offences such as this, involving the proceeds of crime, strike at the very heart of our community’s relations between individuals. They go against the grain for those who work hard for their cash and the Court, by its sentence, must endeavour to deter those who would seek to profit from crime by imposing a serious and condign punishment.

15. Ordinarily, as I have indicated, given the maximum penalty and the nature of these offences, a custodial sentence would be imposed. There are, however, matters which mitigate the offence. I have noted already the offender’s psychological vulnerability. Again, I note that this is, as part of a series of serious offences, the least serious money laundering type offence. Because of the recklessness involved, there is no evidence of her direct knowledge of the source of the money. The money was treated as her husband’s income and she was, as I have noted, dependent on her husband.

16. There are matters in mitigation of sentence. As I have indicated, she was otherwise of good character. There is a history of community work. I find that she is unlikely to re-offend. She is the sole carer for her young daughter. She is working and has entered into arrangements to make reparation. I find there is some evidence of remorse. While she did not give evidence, her affidavit indicates she acknowledges the harm she has done to the community. The impact of these offences and the risk of gaol will be, I accept, a considerable specific deterrent to her. As I have indicated, her prior good character means that she is unlikely to re-offend. She still suffers from anxiety and requires continuing treatment. I have to have regard to the impact of imprisonment upon her. I have regard to what was set out in her doctors’ and psychologist’s reports and what was said by Ms Player, particularly at paragraph 38, about the need for lengthy overarching supervision.

Disposition

17. Her plea of guilty was important. I indicate that, but for the plea of guilty, a sentence of 2 years and 3 months would have been imposed. Given that I should discount this sentence by twenty-five per cent, that allows for the suspension of the sentence for the reasons indicated above. This is an appropriate matter for suspension of sentence. It is also necessary to impose a penalty in relation to the second count but in the circumstances a bond of 3 years would be appropriate. The Pre-Sentence Report indicates that no supervision is required, however, Ms Player’s helpful report indicates that some form of supervision to follow up to make sure that the offender continues with psychological and psychiatric treatment is required.

Formal order

18. Ms Saliba, you are convicted of the first offence involving recklessly dealing with the proceeds of crime. You are sentenced to a term of imprisonment of 1 year and 8 months. Pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, I order that execution of the sentence be suspended upon you entering into a good behaviour bond for a term of 1 year and 8 months, commencing today, 29 November 2010. The conditions of the bond are as follows:

(1) To appear before the Court to be sentenced if called upon to do so at any time during the term of the bond.
(2) To be of good behaviour.
(3) To advise the Registrar of the District Court by prepaid registered post of any change in residential address during the term of the bond.

19. In relation to the second offence of make false statement to obtain money, you are convicted. Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, the sentence is deferred. I order that you enter into a good behaviour bond for a period of 3 years to date from today, 29 November 2010, with the following conditions:

(1) To be of good behaviour.
(2) To appear before the Court if called on to do so at any time during the term of the bond.
(3) To accept the supervision and guidance and comply with all reasonable directions of the Community Offender Services for as long as deemed necessary.

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