R v Moukhallaletti

[2019] NSWDC 311

District Court

New South Wales

Medium Neutral Citation:	R v Moukhallaletti [2019] NSWDC 311
Hearing dates:	06 June 2019
Date of orders:	05 July 2019
Decision date:	05 July 2019
Jurisdiction:	Criminal
Before:	Weber SC DCJ
Decision:	1. In respect of Count 1, the offender is sentenced to a term of imprisonment of 2 years, with a 1 year non-parole period. The term of such imprisonment shall commence on 17 June 2022.  2. In respect of Count 2, the offender is sentenced to a term of imprisonment of 3 years, with a 1 year and 6 month non-parole period. The term of such imprisonment shall commence on 17 July 2022.
Catchwords:	SENTENCING – Money laundering – Dealing with proceeds of crime – relevant factors on sentence – where offender the primary beneficiary of the offences - where offences lacked organisational sophistication - where particular need for general and specific deterrence – where offender has significant criminal history – where offender previously convicted for drug trafficking and money laundering offences – where offender currently in remand for other offences – where no fresh evidence of remorse or unlikelihood of reoffending   SENTENCING – Penalties – Imprisonment – no standard non-parole period - accumulation, concurrency and totality – where concurrent sentences warranted – where only partial accumulation warranted – where desirable to avoid crushing sentence – where “special circumstances” warranted
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited:	Gore v R [2010] NSWCCA 330 Johnson v The Queen (2004) 78 ALJR 616 Majeed v R [2013] VSCA 40 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 R v Ansari (2007) 70 NSWLR 89 R v Guo (2010) 201 A Crim R 403 R v Huang (2007) 174 A Crim R 370 R v Li (2010) 202 A Crim R 195 R v WC [2008] NSWCCA 268 Ramos v R [2018] NSWCCA 206 The Queen v Olbrich (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina (Crown) Samir Moukhallaletti (Offender)
Representation:	Counsel: Mr D. Patch (Crown) Mr J. Trevallion (Offender)   Solicitors: Ms J. Todhunter (ODPP) Mr A. Soukie (Offender)
File Number(s):	2015/00338565
Publication restriction:	None

Judgment

1. The offender comes before the Court for sentencing following guilty verdicts of a jury delivered on 28 May 2019.

2. The offender stood charged with two counts of offences pursuant to the provisions of section 193B(1) of the Crimes Act 1900 (NSW) (“Crimes Act”). The particulars of the counts contained in the indictment are as follows:

1.    Between 23 October 2013 and 29 October 2013, at Theresa Park in the State of New South Wales, did deal with proceeds of crime, namely, $89,400 in Australian currency, knowing that it was the proceeds of crime and intending to conceal that it was the proceeds of crime.

2.    Between 28 November 2013 and 31 December 2013, at Theresa Park in the State of New South Wales, did deal with proceeds of crime, namely, $200,000 in Australian currency, knowing that it was the proceeds of crime and intending to conceal that it was the proceeds of crime.

3. Following the delivery of the jury’s verdicts, I entered convictions against the offender in respect of both counts.

Maximum Penalty

4. The maximum penalty provided for each offence is 20 years imprisonment.

5. Parliament has not specified a standard non-parole period in respect of the offence. As the offender was found guilty after trial, there can be no discount or consideration of an early plea of guilty. That is not to say, however, that the penalty is increased because the offender put the Crown to proof.

6. Consistent with the verdicts of the jury, I find the following beyond reasonable doubt:

Count 1

• In mid-2013, the offender asked Mr Craig Death, his brother-in-law, if he would purchase a 2010 model Black Audi Q7 for him. The car was unregistered at the time.

• The offender requested that Mr Death put the car in his name, and said that he would give Mr Death the money for the car in cash. The offender directed Mr Death to deposit the cash into his personal Westpac account, and then transfer it electronically to the seller, ‘Prestige Autohaus’, in Melbourne.

• The offender promised Mr Death $5,000 to undertake this purchase. Mr Death spoke to a representative of the Audi dealership and was advised that the offender had already spoken to him and had already negotiated the price for the car. The car dealer than gave Mr Death the dealership’s bank account details.

• A total of $89,400 in cash was given by the offender to Mr Death. $86,700 was used to purchase the car. The remaining cash was the reward promised by the offender to Mr Death for helping to launder the money.

• On 23 October 2013, the first transfer of $5,000 to the dealership occurred. This first payment, a deposit, was paid by Mr Death who transferred money from another personal bank account, an ING savings account, to his Westpac account and then transferred it to the Audi dealer around this time.

• The day after this initial payment, the offender gave Mr Death $15,000 in cash. Mr Death counted and found it was $200 short. Mr Death told the offender this and he said he would make up the difference with the next lot of cash. Mr Death deposited separately $4,800 and $10,000 cash into his Westpac bank account.

• The offender advised Mr Death that he wanted to get the car paid for as soon as possible.

• The offender gave Mr Death amounts of between $10,000 and $20,000 in cash, to deposit into his personal Westpac account and then to transfer out to the car dealer.

• As directed by the offender, Mr Death deposited the cash into his personal Westpac account in $10,000 increments and then transferred it to the car dealer.

• Mr Death also used his partner’s personal St George account to deposit further amounts of cash.

• Mr Death then transferred money to the car dealer from his partner’s account in lots of $5,000 (his partner’s limit of daily online transfers was $5,000). By using his partner’s bank account and his own bank account, Mr Death was able to pay off the car dealer more quickly, as per the offender’s instructions.

• On 29 October 2013, Mr Death made the bank transfer of $6,700 which was the final payment to the car dealer. Mr Death paid a total amount of $86,700 to the car dealer.

• The car was delivered on a truck to the offender’s house in early November 2013. The offender completed the registration paperwork for the car and asked Mr Death to sign the transfer documentation. The car has NSW registration BSCxxx and was registered in the name of Mr Death.

• The car was exclusively used by the offender and his wife.

• Mr Death retained the difference between the cash deposits provided by the offender and the $86,700 purchase price of the car, in his personal Westpac account as his reward for laundering the money, in accordance with the promise made to him by the offender.

Count 2

• Shortly after the above events in relation to the purchase of the Audi motor vehicle, the offender approached Mr Death again. The offender told Mr Death that he was “coming into some money”.

• The offender asked Mr Death if he could deposit some cash into his account, and then have Mr Death transfer it back to him via a business account he had called ‘KJEM Investments’.

• The offender said that he wanted to use the money to make a deposit on a property at Theresa Park. This was the property adjacent to the offender’s home.

• The offender gave Mr Death the account details for the transfer of money into a business account ‘KJEM Investments’.

• The offender told Mr Death on several occasions that this business account was his, and that it had been named after the initials of the given names of his children.

• From November 2013 onwards, Mr Death began regularly receiving cash in amounts between $5,000 to $10,000 from the offender.

• The offender would give Mr Death up to $30,000 in cash. The offender asked Mr Death to only make a maximum of $10,000 transfers to his accounts so “no alarms would be raised”.

• From Mr Death’s Westpac account statements, the first deposit of $10,000 was on 28 November 2013. Mr Death transferred the $10,000 out of his account and into the account of KJEM Investments. Mr Death again used his partner’s St George account to deposit cash and to then transfer this money back out into the KJEM bank account.

• Mr Death continued the transfers on a regular basis until 30 December 2013.

• In total, Mr Death received $204,500 in cash from the offender, which he deposited into his personal Westpac account and his partner’s personal St George account. Of this $204,500, Mr Death transferred a total of $195,000 to the KJEM bank account. Mr Death kept the difference as a reward for his involvement in the transactions.

• The money was used to purchase the property at Theresa Park.

Assessment of Criminality

7. It is necessary to make a finding as to the objective seriousness of the offending, particularly as the offences do not carry a standard non-parole period.

8. In Ramos v R [2018] NSWCCA 206 (26 September 2018), Beech-Jones J (with whom Ward CJ in EQ and Bellew J agreed), considered the principles applicable in sentencing for money laundering offences. His Honour stated at [33]:

Based on these provisions, counsel for the applicant identified at least five different factors that, in a given case, could affect an assessment of the objective seriousness of an offence under s193B(2), namely, the manner of ‘deal[ing]’ that lead to the offence, the level of planning and sophistication involved in such a dealing, the underlying criminal conduct from which the proceeds were derived, the amount or value of the proceeds of crime and any harm that may be occasioned from the offending. Counsel submitted that to make a proper assessment of the relative seriousness of an offence under s193B(2), ‘it is necessary to be mindful of those features that are common to all such offences, but also the broad range of variable factors contemplated by the provision’.

9. His Honour went on to further state at [35]:

There was no doubt that it was incumbent upon his Honour to assess the objective seriousness of the second offence (R v Campbell [2014] NSWCCA 102 at [27] Simpson J with whom Hall J agreed), although it was not incumbent upon his Honour to identify where it lay on any scale of offences. It will often be the case with offences under s193B that little will be known about the offending other than the mere possession of elicit funds and the bare fact that they are derived from illegal activity. In such cases and where a sentencing judge does not receive any submissions specifically directed to the offence, then it might be sufficient for a sentencing judge to merely state what is known about the offending and provide their best assessment of the criminality involved.

10. The Crown submitted that in the circumstances of this case, the offender was the organiser and principal beneficiary of the money laundering activities. It submitted that it was the offender’s money to start with, and but for $15,000 kept by Mr Death, by laundering in total some $300,000, the offender ended up with substantial assets. That is to say, that as a result of the money-laundering the subject of count 1, the offender obtained an Audi motor vehicle; and in respect of the money laundering the subject of count 2, obtained the deposit for the purchase of the property next door to his home.

11. The Crown also points out that the sums involved, namely approximately $100,000 for count 1, and $200,000 for count 2, should be regarded as a significantly aggravating factor. It submits that the most important consideration when sentencing for offences of this type, is to consider carefully what the offender did, because as is the case in these proceedings, there may be little evidence concerning the organisation behind the offence or the source of the funds (R v Ansari (2007) 70 NSWLR 89 at [119]; R v Guo (2010) 201 A Crim R 403 at [88]; The Queen v Olbrich (1999) 199 CLR 270 at [19]).

12. In this regard, the Crown submitted, correctly in my view, that the offender’s role was clearly more significant than the role played by Craig Death. Not only was the offender the principal beneficiary, but he instigated and organised the offences.

13. The Crown also submitted that the facts underlying the two counts reveal a well-organised scheme, involving a substantial degree of planning. I do not accept that that is the case. The passing of the money through third party accounts in small tranches does not, in my view, bespeak any particular level of planning or financial sophistication. Nor does the fact, as the Crown submitted, that the offender chose to launder the money through Mr Death, who had significant savings of his own, thus making the transactions more likely to be masked as legitimate, lead to the conclusion that there was the requisite degree of organisational sophistication.

14. The Crown correctly pointed out that the number of transactions, and the period over which the transactions occurred, are significant, insofar as they indicate the extent of the offender’s criminality. It pointed out that, as a general proposition, a number of transactions involving small amounts of money will be taken to be more serious than a single transaction of a larger amount, as the latter may be an isolated offence (R v Huang (2007) 174 A Crim R 370 at [35]; R v Li (2010) 202 A Crim R 195 at [41]; R v Guo (2010) 201 A Crim R 403 at [87], [89]).

15. As can hopefully be seen from the preceding paragraphs, other than in respect of the Crown’s submissions on planning and financial sophistication, I agree with the Crown’s submissions on the objective seriousness of the offences.

16. As Beech-Jones J pointed out in Ramos v R [2018] NSWCCA 206 at [35], in respect of offences of this kind, it can be difficult to be definitive about the objective seriousness of the offence. While acknowledging that difficulty, I have come to the conclusion that count 2 is slightly less than the mid-range on the scale of objective seriousness, while count 1 is lesser than count 2 in its objective seriousness.

Aggravating and Mitigating Circumstances

17. It was submitted by the offender that there are no mitigating or aggravating factors that would impact on this sentence. The offender referred to Gore v R [2010] NSWCCA 330 per Howie J at [106], where it was held that a sentencing court should not treat the sentencing factors under section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Crimes Sentencing Act”), simply as a checklist. The court needs to give consideration as to whether or not the factors actually aggravate or mitigate the offence.

18. The Crown did not suggest that there were any aggravating factors nor did they suggest any mitigating factors. It was submitted by the Crown that there was no evidentiary basis upon which the Court could conclude that the offender demonstrated remorse, though it noted correctly that the lack of remorse was not an aggravating feature.

19. The offender tendered various documents which had been part of the evidence on a sentencing hearing of other offences involving the offender before Graham ADCJ, to which I shall return later in these Reasons. These documents included statements of remorse by the offender in relation to the offences before Graham ADCJ, and various references by third parties.

20. There was no fresh material of that nature adduced for the purposes of the matters that are before me, and I found the material tendered to be unhelpful in relation to the offences before me. I certainly did not find in those materials any basis upon which it could be said that the offender had exhibited any particular remorse in respect of the subject offences. I similarly did not find in them any support for a submission that the offender is unlikely to reoffend.

Deterrence

21. The Crown submitted that any sentence which is imposed in respect of these offences must reflect general deterrence to a very significant degree because, notwithstanding the varying degrees of gravity involved in the “scale” of offences, money laundering is a serious criminal activity and justifies severe punishment (R v Huang (2007) 174 A Crim R 370 at [36]; R v Guo (2010) 201 A Crim R 403 at [91], [103]; Majeed v R [2013] VSCA 40 at [39], [44]). I agree with this submission.

22. The Crown also submitted that the section 193B(1) offences for which the offender is to be sentenced, are the most serious on the “scale” of money laundering offences.

23. The Crown then submitted that given the offender’s lengthy criminal history, to which I shall return (including, in particular, other crimes of dishonesty) any sentence which is imposed by the Court must reflect the need for personal deterrence on behalf of the offender. I also agree with this proposition.

Offender’s Personal Circumstances

24. The offender is 41 years of age, and was 35 years of age at the time of the commission of the offences. He is married, having married his wife some 16 years ago. The couple have been together for 21 years. They have three children: two boys and a girl, whose ages range between 7 and 16.

25. The offender’s eldest son has been diagnosed with a range of learning and behavioural issues including ADHD, and specific learning difficulties. The evidence before me included a letter written by the offender’s wife for the purposes of the sentencing hearing before Acting Judge Graham, in which she stated that the incarceration of the offender has been of particular hardship to his eldest son. Indeed, his eldest son provided evidence before Acting Judge Graham to that same effect.

26. It seems that these difficulties were compounded during a period when the offender’s wife was also incarcerated. She has now been released from imprisonment.

27. The evidence discloses that the offender is in basically good health, save for the fact that he suffers from an eye condition.

28. The evidence also suggests that he has conducted himself well in gaol, and has risen to the position of a sweeper in the Metropolitan Remand and Reception Centre, a position of some trust.

29. The criminal history of the offender is that between 1994 and 2008, he was in reasonably constant trouble with criminal law, including an offence of robbery in company in 1996, offences of dishonesty and a significant number of offences involving driving while disqualified. The offences of dishonesty are directly relevant to the matters before the Court, and while at first blush the driving while disqualified offences do not appear to be directly relevant, they do bespeak a significant disregard for the law, and a flouting of court orders

Proceedings before Graham ADCJ

30. On 1 November 2018, the offender came before Acting Judge Graham following a plea of guilty in respect of a count on the indictment that specified that on 21 August 2014, at Robertson, he supplied a prohibited drug namely 1.9858 kilograms of methylamphetamine, being an amount not less than a large commercial quantity applicable to that prohibited drug. This was an offence pursuant to the provisions of section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carried with it a term of imprisonment for life as a maximum penalty, and a standard non-parole period of 15 years (the “Drug Trafficking Offence”).

31. The offender also pleaded guilty to three counts of money laundering offences, pursuant to the provisions of section 193B(2) of the Crimes Act.

32. Count 1 alleged that between 25 November 2013 and 14 February 2014, the offender dealt with the proceeds of crime, namely US$450,000, knowing that it was the proceeds of crime.

33. Count 2 alleged that between 14 February 2014 and 22 June 2014, the offender did deal with property, namely a Merlin Fairchild two-engine aircraft, intending that the property would become an instrument of crime, and that the property subsequently became an instrument of crime. This was an offence of dealing with property intending it to be an instrument of crime, pursuant to the provisions of section 193D(1) of the Crimes Act.

30. Count 3 was a further breach of section 193B(2) of the Crimes Act, alleging that between 1 October 2013 and 4 July 2014, the offender did deal with proceeds of crime, namely $325,000, knowing that it was the proceeds of crime.

31. I shall refer to Counts 1 to 3 as the “Money Laundering Offences”.

32. In addition, the Court was asked to deal with a further matter on a Form One in relation to count 1, being a money laundering offence committed between 1 October 2013 and 10 December 2013, in which the offender dealt with proceeds of crime being $95,000, knowing that it was the proceeds of crime.

33. Graham ADCJ also dealt with a severity appeal in respect of an offence of acting with intent to influence a witness, in respect of which he allowed the appeal and imposed a fixed term of 15 months imprisonment. This latter offence did not loom large in the submissions made in relation to the matter before me, and I do not see it as playing a part in the sentencing calculus.

34. On the Drug Trafficking Offence, the offender was sentenced to an overall term of imprisonment of 10 years, with a non-parole period of 6 years and 6 months. This sentence was to commence on 18 July 2016 and expire on 17 January 2023.

35. As to the Money Laundering Offences, on count 1, the dealing with proceeds of crime count (the US$450,000), the offender was sentenced to a fixed term of 3 years imprisonment, commencing on 18 July 2015 and expiring on 17 July 2018. A form 1 offence was taken into account in relation to count 1.

36. On count 2, namely the aeroplane count, the offender was sentenced to a term of imprisonment of 5 years, with a non-parole period of 3 years, commencing on 18 July 2015 and expiring on 17 July 2018.

37. On count 3 (the $325,000 count), the offender was sentenced to a fixed term of 18 months, commencing on 18 July 2015 and expiring on 17 January 2017.

38. The total overall sentence provided for all offences (including the severity appeal) was 11 years and 6 months, with a non-parole period fixed at 8 years.

39. The effect of the sentence was that the offender would be eligible for release on parole at the expiry of the non-parole period, on 17 January 2023.

40. Before turning to the principle of totality, I should note that the parties’ submissions on sentence proceeded from the unstated premise that no penalty other than a term of imprisonment was appropriate. That, in my opinion, was undoubtedly correct, and I so find (section 5(1) of the Crimes Sentencing Act).

Totality

45. The parties were in agreement that principles of totality must play a significant role in the sentencing task before me. In essence, the Court is required to “look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences” (Mill v The Queen (1988) 166 CLR 59 at 63; Johnson v The Queen (2004) 78 ALJR 616 at [18]).

46. The phrase “the totality of criminal behaviour” includes both the matters in respect of which the offender is currently serving a sentence, and the matters for which he is about to be sentenced following the trial.

47. In Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ said, at [45]:

A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, questions of totality.

48. The principles of totality and their application were discussed in R v WC [2008] NSWCCA 268. In that case, Hall J (McClellan CJ at CL and Harrison J agreeing) found that the sentencing judge had correctly applied the principle of totality. Their Honours said :

[52] The present appeal raises the issue of the need to maintain an appropriate relationship between the totality of the criminality involved in a case involving a series of offences and the total of the sentences to be imposed for those offences: Regina v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15].

…

[56] In Postiglione (supra) at 307 to 308, McHugh J observed:-

“The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved ...”

[57] McHugh J cited remarks of King CJ in Regina v Rossi (unreported, Court of Criminal Appeal of SA; 20 April 1988) as follows:-

“There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.”

[58] McHugh J went on to observe in Postiglione (supra) at 308:-

“The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged ... Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences ...”

[59] In MAK (supra), this Court (Spigelman CJ, Whealy and Howie JJ) at [16] observed:-

“The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in Regina v Clinch (1994) 72 A Crim R 301 at 306:-

‘... the severity of a sentence increases at a greater rate than any increase in the length of sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.’”

49. The Crown submitted that when considering the penalties imposed by Graham ADCJ, it was important to recall that the offences before His Honour were in respect of section 193B(2) of the Crimes Act, rather than the more serious section 193B(1), in respect of which I am to sentence.

50. The offender submitted, however, that the distinction between the two sections in its practical application to the two cases, may well be of no great importance, as Graham ADCJ can be taken to have sentenced the offender on the basis that he intended to conceal the fact that he was dealing with proceeds of crime, thus bringing the section 193B(2) offences into closer alignment with the facts which underlie the section 193B(1) offences before the Court at present. I agree with this submission.

51. The offender submitted that, to avoid a crushing and disproportionate outcome, it was important that the sentences imposed for the current offences should only be partially accumulated on the offender’s current sentence which, as I have indicated, makes him eligible for release on parole on 17 January 2023. I did not understand the Crown to demur from that general proposition.

52. The parties were also in agreement that the need to facilitate the application of principles of totality, accumulation, and concurrence, constituted “special circumstances” for the purposes of section 44(2) of the Crimes Sentencing Act.

53. The parties also agreed that the principle of totality is best carried out by a sentence commencement date occurring after the date upon which the sentence is imposed, pursuant to the provisions of section 47(2)(b) of the Crimes Sentencing Act.

54. I propose to carry into effect the principle of totality by imposing separate sentences in respect of each count, and provide for a commencement date of the sentences in respect of each count so that the longer of the two non-parole periods will expire one year after the current date upon which the offender is eligible for release. That is to say, I propose to provide sentences that will have the effect that the offender will be eligible for release on parole on 17 January 2024.

Sentence

55. Samir Moukhallaletti:

1. On Count 1, you are sentenced to a term of imprisonment of 2 years, with a 1 year non-parole period. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 17 July 2022. The non-parole period will expire on 16 July 2023, and the head sentence will expire on 16 July 2024.

2. On Count 2, you are sentenced to a term of imprisonment of 3 years, with a 1 year and 6 month non-parole period. Pursuant to the provisions of section 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct that such term of imprisonment shall commence on 17 July 2022. The non-parole period will expire on 16 January 2024, and the head sentence will expire on 16 July 2025.

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Decision last updated: 11 July 2019