R v Katahie

Case •

[2019] NSWDC 568

•

17 July 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Katahie [2019] NSWDC 568
Hearing dates: 21 June 2019
Date of orders: 17 July 2019
Decision date: 17 July 2019
Jurisdiction:Criminal
Before: Bennett SC DCJ
Decision:

Community Release Order for a term of 18 months

Catchwords: CRIME — Confiscations — Forfeiture order
SENTENCING — Relevant factors on sentence — Co-offenders
SENTENCING — Sentencing procedure — Agreed facts
Legislation Cited: Confiscation of Proceeds of Crime Act 1989
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: McNaughton [2006] NSWCCA 242
Qutami [2001] NSWCCA 353
Veen v The Queen (No 2) in (1988) 164 CLR 465
Category:Sentence
Parties: Regina (Crown)
Hany Katahie (Offender)
Representation:

Andrew Kemp (Crown)
Michael Coroneos (counsel) (Offender)

  Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2017/00047560

EX TEMPORE REVISED Judgement

INTRODUCTION

  1. Hany Katahie was committed for trial on 15 May 2018 from the Local Court in Burwood but on 6 February 2019, two days after the date appointed to the commencement of the trial in the District Court at Parramatta, the offender pleaded guilty to one offence upon a fresh indictment.

THE TIMING OF THE PLEA

  1. He pleaded guilty at the first opportunity he had to do so when the fresh indictment was filed with leave of the Court after there were protracted negotiations between the Crown and on behalf of the offender.

THE OFFENCE

  1. The offender thus pleaded guilty to an offence expressed in the following terms:

“That he between the 22nd day of December 2015 and the 31st day of January 2017, at Sydney in the State of New South Wales, did knowingly induce another person, namely HB to accept any information attached to a vessel as a genuine unique identifier for the vessel when the information was not in fact a genuine unique identifier for that vessel.”

  1. The offence is contrary to s 154H(1)(d) Crimes Act 1900. The maximum penalty for that offence is imprisonment for seven years. It is an offence that could be prosecuted summarily in which case the jurisdictional limit of the Local Court would be engaged, that is imprisonment for two years and a fine represented by 20 penalty units.

  2. The facts before me describe conduct beginning on 22 December 2015 and concluding in January 2016. That is a much shorter period than the breadth of the date range particularised in the count on the indictment. This has been brought to my attention by Mr Coroneos on behalf of the offender because the offender was on conditional liberty from 14 February 2017 in respect of bail for offences of driving whilst licence suspended, resisting an officer, driving a motor vehicle whilst suspended again, and driving without wearing a seatbelt. Although that conditional liberty arose from 14 February 2017, whether he is dealt with on the basis of the range date in the indictment concluding on 31 January 2017 or with regard to the statement of agreed facts he was not subject to conditional liberty at the time of the misconduct upon which he is to face sentence. Thus as an aggravating factor that is to be disregarded. There is no standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999.

THE FACTS

  1. The facts are that between 22 December 2015 and January 2016 the offender involved himself in a transaction arising as a consequence of the theft and conversion of a jet ski registered ultimately with the number AIPXXXX. The events commenced on 22 December 2015 when two males in a Holden Rodeo utility stole a 2014 pink Sea Doo jet ski, the property of a man named JX. The correct hull identification number for that vessel was XXXX1314. The vessel was registered AHUXXXX. The vessel was stolen from the victim’s home address. A witness saw this occur. A closed‑circuit television was installed nearby and it captured the utility entering the victim’s street and then exiting less than a minute later at high speed with a jet ski attached to the rear.

  2. On 23 December 2015 a co-offender Ahmed Ghazzaoui attended a boat code agent to obtain a boat code certificate so that a vessel could be registered. The co-offender was driving a white Holden Rodeo utility with a registration BPXXXX with the stolen jet ski attached. The utility is registered to that co-offender’s mother. The vehicle compared with the vehicle seen in the commission of the theft of the vessel from the victim’s home.

  3. The correct hull identification number to which I have referred indicates that it was manufactured in Mexico. The hull identification number attached to the jet ski at the time it was presented to the boat code agent was XXXXK314. This was false and the letters at the beginning of the number indicated that it was from a vessel manufactured in Canada.

  4. The co-offender signed a statutory declaration asserting that the vessel was bought from a JM in Brisbane on 1 December 2015. On 24 December 2014 another co-offender Rana Ghazzaoui attended the Roads and Maritime Services Centre at Bankstown and registered the altered jet ski with the number AIPXXXX. She provided her pension identification and driver’s licence to confirm her identity. She produced a false receipt of sale stating that the vessel was purchased from JL of an address in Queensland. Her licence in the name Rana Ghazzaoui on the false receipt was different to that which was presented when she provided identification for the purposes of the registration.

  5. In January 2016 this offender before me sold the Jet Ski with the fraudulently obtained registration in the name of the co-offender Rana Ghazzaoui to the next victim HB. The purchase price was $1,750. He then sold it on to his housemate ES. The offender negotiated a price for the sale of the Jet Ski to HB and delivered it to him, along with registration papers. On 8 September 2016 the jet ski was seized by police and a forensic examination was conducted. This revealed the original HIN or hull identification number had been ground from the hull. By their processes they were able to confirm the identity of the vessel as the property of the victim JX stolen on 22 December 2015.

  6. The offender was arrested and charged on 14 February 2017. He denied knowledge that the hull identification number was not genuine in the electronically recorded interview in which he participated.

  7. He has pleaded guilty to this offence and by doing so he acknowledges all of the elements required of the Crown to prove the crime. These include that the vessel was sold to HB by the offender with knowledge of the status of the vessel at the point of the transaction.

  8. The enterprise in which the offender participated was extensive. The two principal offenders in the overall enterprise are Ahmed Ghazzaoui and Mohammed Ghazzaoui. They were sentenced by me, each of them to imprisonment; Ahmed Ghazzaoui suffered imprisonment of two years and four months with a non-parole period of eight months upon a finding of special circumstances. Mohammed Ghazzaoui suffered imprisonment of two years and two months with a non‑parole period of six months upon a finding of special circumstances. Both of them were involved to a much greater extent and the allegations against them included the acquisition and modification of a number of vessels that were ultimately on‑sold at the expense of the victim from whom they were first taken, perhaps insurance companies that might have been called upon to meet claims, and any further individual who was duped into acquiring the vessels without notice of their lack of provenance.

  9. Rana Ghazzaoui was sentenced in the Local Court at Burwood by Magistrate Denes; she was convicted and was required to enter a bond for a period of 18 months pursuant to s 9 Crimes (Sentencing Procedure) Act 1999.

  10. Another offender Suffet Okalpoglu was dealt with in the Local Court at Burwood by Magistrate Goodwin and was ordered to submit to a bond pursuant to that same provision for a period of 12 months.

  11. Each of those two offenders were charged with the offence of dishonestly possess or interfere with unique identifier and publishing false/misleading material to obtain property. Rana Ghazzaoui was also charged with one count of inducing another to accept a non-genuine unique identifier.

  12. Omar Obeid appeared before me charged with knowingly facilitating an organised boat re-birthing activity, with a Form 1 offence and another offence of dishonestly possessing part of a motor vehicle. For those offences I imposed an aggregate sentence of 2 years and 4 months with a consequent order that the sentence be served by way of an intensive corrections in the community.

  13. The further offender Osman Okalpoglu is charged with knowingly facilitate organised boat re-birthing activity and a related matter and is listed part‑heard before Williams SC DCJ in the District Court in Sydney on 12 August 2019.

  14. Thus parity is a consideration, although it must be noted that the other offenders were charged with a more extensive range of misconduct, particularly Ahmed and Mohammed Ghazzaoui, whereas this offender had the limited role to which I have referred in the course of the discussion of the facts.

THE OFFENDER

  1. Born in 1994, he will this year reach the age of 24 years. He has a record of antecedents that’s quite extensive for his age. He was first in the Children’s Court in October 2010 for robbery in company; he was fined and put on probation for 12 months for that offence. In August 2013 for common assault in the Local Court he was ordered to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of 18 months, for assault occasion actual bodily harm he was imprisoned for 18 months but that was suspended pursuant to s 12 Crimes (Sentencing Procedure) Act.

  2. For an offence of affray he was imprisoned for 18 months but that too was suspended pursuant to the same provision. In November 2016 for contravening and apprehended domestic violence order, he as placed on a s 9 bond for a period of two years. In May 2017 for failing to appear, he was prosecuted by that was dismissed pursuant to s 10 Crimes (Sentencing Procedure) Act 1999.

  3. Turning to further matters out of date order, in September 2014 in the Local Court he was fined $150 for possession of ammunition without holding a licence or permit, in October 2015 for possessing a prohibited drug he was fined, in May 2016 for driving with an illicit drug in his blood he was fined and disqualified, in September 2016 for resisting or hindering a police officer in the execution of duty and contravening an apprehended domestic violence order, in each case he was required to enter bonds pursuant to s 9 for 12 months. In December 2017 he was called up for those and in each case was ordered to pay a fine. In December 2017 for resisting an officer in the execution of duty and driving whilst suspended in the first offence he was ordered to perform 40 hours community services and in the second he was put on a bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999 for a period of 12 months. December 2017 for not wearing a seatbelt and for driving while suspended he was fined for the first of those offences and ordered to perform another 80 hours community services, accumulated, together with a disqualification of six months.

  4. He has spent no time in custody for the offence upon which I am to impose sentence today but he has been in gaol before, I note that he was first in custody in another facility on 18 and 19 June 2016, then on 2 August 2016 until 8 September 2016 and then on 5 May 2017. So he understands the consequences of criminal misconduct and what will occur to him should he breach the bond that I intend to impose today.

  5. The sentence assessment report provides insight into his background. He lives in stable accommodation with his parents, he has casual employment and has expressed his intention to start his own business described as that of a vacuum truck once he concludes these proceedings. His criminal history is summarised, he attributed his misconduct on this occasion with associating with negative influences and being offered financial advantage. He reports since these events of having had no contact with any of his old associates. There’s a diagnosis of mild intellectual disability to which I will come when I deal with the psychologists assessment.

  6. He was at the time using 5 to 6 grams of cocaine a week but recently claims that he is not using illicit drugs. He has expressed insight into the misconduct upon which he engaged; he is willing to undertake intervention to address negative associations, financial stability and drug relapse prevention. He is assessed as having a low risk of re‑offending and subject to what I order today he is to report to Bankstown Community Corrections Office. The report specifies 21 March 2019 but that clearly would need to be adjusted to accommodate the resolution of the matter today.

  7. I have been provided with the statements of agreed facts that were before the Courts for the assessment of sentence upon the co‑offenders. I have the antecedents of Omar Obeid included in the material together with the Ghazzaoui brothers.

  8. I do not have my reasons for the decisions I came to in the cases that I determined but I have a memory of what the cases concerned, the extent of the conduct that I was called upon to assess and the circumstances of the individual offenders.

  9. This was organised criminal activity across a broad range, both in terms of time and the extent of the misconduct upon which the enterprise, speaking globally, was embarked. I have reflected in the reasons in at least one or other of the other cases upon the seriousness of this enterprise as a criminal enterprise. People who have worked hard are to expect and be able to acquire these chattels for their enjoyment, but suffered the loss of them through theft, involving I would expect claims on insurance companies which are subrogated to the rights of the victims of the thefts upon the payment out of the claims made. There are then victims who come into the arrangements, given the opportunity to buy these vessels. Though they are purchasers for value without notice of the lack of provenance of the various vessels they too are victims and are out of pocket because when the police turn up to seize these vessels they lose what they bought and what they paid for them. Ultimately this was an enterprise for the purposes of financial gain.

  10. Insofar as this offender is concerned, whatever view one might take of the overall enterprise and the extent of it, his participation in the offence to which he’s pleaded guilty is well below mid-range of objective gravity.

  11. Material tendered in his case includes a document provided by the offender expressing his shame and remorse. The Court must, of course, approach any such representations with circumspection in accordance with what has been said in a number of authorities, including the judgement of Smart AJ in Qutami [2001] NSWCCA 353. Statements made by the offender clearly are admissible but being presented in the way they are, not under oath or affirmation, without being tested by cross-examination, caution is required. In this case though I believe I can accept his expressions of remorse in light of something that appears in the psychologist’s report provided by John Macklin written on 18 March 2019. At p 3, beneath the heading “Discussion of the Offence” the following is recorded:

“The Agreed Statement of Facts outlines the details of Mr Katahie’s offence in which he on-sold a stolen jet ski. He recalled at the time that he was ‘mixing with the wrong people’. He said they tended to use him because he was privileged, that is, ‘My parents spoilt me...I had a car’. The offence occurred during the period that he used cocaine, but he denied it had any relevance. He said he thought he would make some money from the sale of the jet ski, but he was not desperate and he had no debt. He said of his offence that he ‘should have checked the paperwork,’ and that nothing like that would happen now that he is with his partner... who is far more competent in that regard.”

  1. To the extent that it might be seen suggested that he has sought to avoid responsibility by attributing his circumstance to having failed to check paperwork I would put that to one side. The fact that he has pleaded guilty acknowledging his offence and the elements of it is inconsistent with any such view of that representation. Moreover, he acknowledges that he has come from circumstances that have not in any way contributed to his crime. His parents obviously provided for him and he has had opportunities. He was using drugs, which would not provide him with mitigation in any event but he has not sought to rely upon some impaired judgement through his resort to illicit drugs. Moreover, he readily acknowledges that he was not in need of money; he had no debt and yet he was engaged upon this to make money.

  2. All of that suggests to me that I should attribute to his representations appropriate weight and accept that he is appropriately contrite and remorseful, and, notwithstanding his background of offending, to be found in his antecedent record, I have also come to the view that upon the material I have there are prospects for rehabilitation, which I would accept to be good.

  3. The psychologist’s report is informative in other respects. He did not do well at school. His literacy is poor. His work opportunities thereupon were limited. He had a toxic relationship with a woman who was addicted to ice and apparently that came to an end, fortunately, and he is now with his current partner, whose name I shall not repeat. They have been together for a year. They committed to each other in an Islamic ceremony and they propose to undergo a civil ceremony to formalise their relationship in accordance with the law of the Commonwealth of Australia. They have no dependents. They are very close; she is supportive and she has endeared herself to his family. She assists him to manage his affairs.

  4. He had a history of substance use between 18 and 20, using cocaine in various amounts. He smoked cannabis less frequently. But at age 20 he ceased - wisely I might say - the use of illicit drugs and has not been tempted to resume. No physical health issue. No reported mental health issues. He is an avid fisherman. He enjoys that for relaxation and in competition. And he appears to have been engaged in competitions, including the pursuit of marlin off-shore. His partner has concurrent interests in those activities and participates with him. Reference to his criminal history is discussed; I have already spoken about the discussion of the offence.

  5. He has been on remand for a significant period of time and has not been the subject of any stringent bail conditions, but he has had the outcome of these proceedings over his head for almost two and half years, as I recall the dates.

  6. Psychometric testing was undertaken. There is comment upon his presentation at interview. I do not propose to go through the detail of that; it is there to be read if there is a need for this to be reviewed in another place. The score achieved on the psychometric testing in terms of a composite IQ score put him toward the lower end of the range.

  7. The information provided was confirmed in interviews with his partner and with his parents. His father is attributed with the proposition that his son tends not to want to let people down and that what he did was stupid, perhaps trying to facilitate the activities of others. One hopes this experience will deflect him from the path which has been followed up until the present time. I note the DSM‑5 diagnosis of intellectual disability mild, which is discussed, offering reasons for the criteria indicating that diagnosis was found to be present.

SUBMISSIONS AND CONSIDERATION

  1. I have the Crown submissions on sentence. The Crown submits that the threshold in s 5 Crimes (Sentencing Procedure) Act 1999 is crossed. The Crown compares and contrasts the misconduct upon which this offender engaged with others and suggests it at least is important, if not more important, than Ms Rana Ghazzaoui and suggests that his conduct was more serious than hers because he interacted with the purchaser directly and held out the jet ski as a legitimate vehicle, whereas she took administrative steps and did not interact with the unsuspecting purchaser. The offender was aware that the jet ski had false hull identification number, whereas she did not make enquiries into the legitimacy of the vehicle but did what she was asked to do without questioning it. This offender was financially motivated, whereas there is no evidence that she received any benefit. The Crown points to him having received $1,750; I note that to be the purchase price according to the facts paid by the victim HB. I would not have thought that that the entire sum would be paid to the offender for that would mean that the others further up in the organisation would receive no reward.

  1. In any event, though I agree objectively that the line in s 5 has been crossed, upon the synthesis of all of the material before me I am satisfied that an option other than a custodial sentence is appropriate. I have had regard to the purposes of sentencing, including punishment, general and specific deterrence, protection from the offender, promotion of his rehabilitation, making him accountable and denunciation and recognition of harm are all engaged. I am required to attribute weight to each of them according to my assessment of their significance in the case. Those purposes articulated in s 3A Crimes (Sentencing Procedure) Act 1999 reflect the common law that has evolved over time and as expressed provide codification of what one would find reading through the various cases.

  2. The record of previous convictions is an aggravating factor of course but only within the parameters of the authorities, such as McNaughton [2006] NSWCCA 242, and at a more senior level in Veen v The Queen (No 2) in (1988) 164 CLR 465. The record informs the extent to which specific deterrence and prospects of rehabilitation are to be assessed. It also addresses the extent to which the community might need to be protected from the offender. It also informs the extent to which leniency might be withheld in the assessment of sentence. But it does not aggravate the objective gravity of the offending or the sentence that would otherwise be proportionate to the misconduct upon which the offender engaged.

DECISION

  1. I am satisfied, bearing in mind what occurred with the other offenders engaged in this enterprise and the level at which the offender participated, not overlooking the matters that the Crown brought to account contrasting the roles performed by Rana Ghazzaoui and the offender, that it is appropriate that there be a conviction but that the matter be dealt with pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. I am satisfied that that is the appropriate option in this case.

  2. I shall specify a period of 18 months.

  3. The community corrections order that I am going to impose will follow upon conviction. There are standard conditions to be employed. These are: that the offender must not commit any offence and the offender must appear before court if called upon to do so at any time during the terms of the order and I am going require that he submit to supervision by Community Corrections and to that end by the close of business on Friday this week, which is 19 July 2019, he is to make contact with Community Corrections at Bankstown and report to them so that his obligations may be explained with the consequences of failing to comply with supervision or engaging upon conduct that might re-engage supervision.

  4. I note that this short minutes of order before me with regard to the forfeiture of $1,750 to be acquired from the offender by way of a pecuniary penalty order it has been signed, indicating the offender’s consent. I propose to make the order pursuant to the Confiscation of Proceeds of Crime Act 1989 s 24(1).

  5. The order is that the offender pays the State of New South Wales a pecuniary penalty order of the sum of $1, 750. I will sign the order. The court seal can be affixed. And the parties shall have liberty to make copies of that document for their files.

  6. I will leave the exhibits on file for 28 days or such longer period as the parties might require.

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Decision last updated: 15 October 2019

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