R v El Ali

[2019] NSWDC 484

District Court

New South Wales

Medium Neutral Citation:	R v El Ali [2019] NSWDC 484
Hearing dates:	28 March 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, the offender is order to comply with a community correction order for a period of 18 months: at [11].
Catchwords:	SENTENCING — Penalties — Community Correction Order SENTENCING — Mitigating factors — Plea of guilty — Good character — Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Availability of summary disposal — Deterrence — Form 1 offences — General principles — Objective seriousness
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Pawnbrokers and Second-hand Dealers Act 1996
Cases Cited:	Attorney​ General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Abdul El Ali (Offender)
Representation:	Ms L Stueckradt (Solicitor for the Crown)   Mr A Moutasallem (Solicitor for Offender)
File Number(s):	2016/272380

Judgment

1. Abdul El Ali, aged 32, was engaged in the business of trading goods, mostly second hand tools and selling them on Gumtree and at a store at a second hand market. He was, I am told, facing a charge which carried a much more serious penalty. That matter was fixed for trial in November last year. There was ultimately an agreement that he would plead guilty to an offence contrary to s 193C(2) of the Crimes Act 1900, of dealing with property suspected of being the proceeds of crime, valued at less than $100,000, for which the maximum penalty is three years imprisonment with no standard non-parole period. To be dealt with on a Form 1, is an offence of carrying on a business of buying and selling second hand goods without a licence contrary to s 7 of the Pawnbrokers and Second-hand Dealers Act 1996. I will deal with that in the way suggested by the Chief Justice in Attorney​ General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518.

2. The Crown concedes that his plea as a result of that agreement has a significant utilitarian value because it saved the community and the court considerable time and expense to prove the elements of multiple instances which would have supported the more serious charge.

3. In short, the agreed facts show that from at least 6 December 2015 the offender was buying and selling second hand power tools on the online market place known as Gumtree and also at the Trash and Treasure markets in Prestons. He kept no ledger or records of the tools he sold or bought and he predominantly accepted cash payments. As he says in his letter to the Court he accepts that he did not do enough on his end to satisfy himself in relation to the tools he was buying and selling, and he offers his apology to the rightful owners of the tools and to the general community.

4. In July 2016, he posted 76 advertisements for power tools on Gumtree under his profile name, these items were identified as having been stolen from a particular person. He continued this trading throughout the period between September and December 2016. He did take some steps to ensure the validity of the transactions, for example in one advertisement on Gumtree he said, “please I don’t want to buy any tools that are stolen, if you have stolen tools don’t message me” and he said in a number of SMS conversations that were uncovered in a Police investigation that he did not want to purchase or deal with stolen tools. Ultimately when he was spoken to by Police in September 2016 he said he had been selling tools for about six months.

5. The charge to which he has pleaded guilty involves 232 out of 405 items that were seized. Those 232 items are listed in schedule one of the agreed facts and it is agreed that the retail value of those items was $61,700 at the time of the offending, but the value of them being second hand tools was clearly significantly less, and all of those items were returned to the original owners. As counsel for the offender says there was no substantial loss to the victims, although undoubtedly there was significant inconvenience and perhaps expense in purchasing or hiring replacement tools until the stolen items were returned.

6. He has no prior record, and that is a significant matter to be taken into account in mitigation, as is his plea and his expression of remorse in an untested of apology to me. I accept that he is currently self employed as a carpenter and supporting his family, including his wife and three children. He is no longer engaged in the activity of buying and selling second hand goods. I take into account the glowing character references provided, (which speak highly of him having been made aware of the nature of the charge.

7. I referred, in addressing the facts, to a number of matters which counsel for the offender relies upon in submissions as to the objective seriousness of the offence. I also take into account, as the Crown points out that this was, on one level, a sophisticated operation attended by a lack of due diligence as the offender acknowledges himself. There was a significant value of property involved. It was clearly being done for financial gain, but I am satisfied that the offender has to a significant extent learnt the lesson of his offending having been on very strict bail conditions since September 2016 and there is no evidence of any further offending since that time.

8. There are no aggravating factors referred to by the Crown or apparent. I refer to the mitigating factors which should be taken into account in the sentencing process. I have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

9. These matters are predominantly, if not exclusively, dealt with in the Local Court and this matter probably would have been dealt with in the Local Court had it not been for the more serious charge which was originally proffered. There is a significant variation in the type of penalties imposed by the Local Court according to the statistics provided by counsel. I recognise the statistics as a very blunt tool. Even though they cover a fairly significant range, there is no information as to the subjective or objective circumstances of any of the cases making up the sample range. It was an objectively serious example of this type of offending, notwithstanding that counsel put that the maximum penalty is fairly low for the type of matters traditionally dealt with in this Court.

10. There was no challenge by the Crown to the submission that a period of full time custody is not required in this case, but the purposes of sentencing, the need to emphasise both general and specific deterrence and the seriousness of these matters require the imposition of a conviction in my view.

11. The orders that I make are:

1. The offender is convicted of the offence.

2. Pursuant to section 8(1) of the Crimes (Sentencing Procedure) Act 1999, I order the offender to comply with a community correction order for a period of 18 months commencing today.

3. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. Appear before court if called upon to do so at any time.

4. Sequence 002 is taken into account on the Form 1.

5. Failure to comply with the conditions of the order may result in further action being taken against you. This may require you to return to court to be re-sentenced.

6. The offender is to attend the Registry for finalisation of the community corrections order.

OTHER ORDERS

7. I make confiscation and forfeiture orders pursuant to the Short Minute of Consent Order dated 28 March 2019.

8. Sequence 003 is withdrawn.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 03 April 2020