R v Saeed

[2023] NSWDC 20

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Saeed [2023] NSWDC 20

Hearing dates:

31 January 2023, 9 February 2023

Date of orders:

9 February 2023

Decision date:

09 February 2023

Jurisdiction:

Criminal

Before:

Wass SC DCJ

Decision:

(1) The Crown’s detention application fails.

(2) Bail to continue.

Catchwords:

CRIME — Bail — Crown Detention Application 

Legislation Cited:

Bail Act 2013 (NSW) s 22B(1)(b)

Cases Cited:

DPP (NSW) v Van Gestal [2022] NSWCCA 171 at [44]

Category:

Principal judgment

Parties:

Department of Public Prosecutions (Applicant)
Saeed (Respondent)

Representation:

Solicitor Advocates:
Ms Bombell (Applicant)
Ms Zbib (Respondent)

File Number(s):

DC 2020/00188125

Publication restriction:

NIL

JUDGMENT

Detention Application

1. The Crown makes its detention application in circumstances where the offender has pleaded guilty and faces sentence before Judge Mark Williams SC in respect of 5 counts of knowingly dealing with a little over $1,000,000, being the proceeds of crime.

2. The offender will also have taken into account 6 further counts on a Form 1 in respect of about $393,000.

3. I delivered this judgment during the course of an ongoing trial, and accordingly my reasons will necessarily be brief.

Parity

4. The Court has already sentenced a number of other participants who face some of the same but also different but similar charges. Two offenders, Ifeanyi NZERIBE and Prince OGBEIDE, received full time custodial sentences. Another five; Youssuf IBRAHIM, Said JAFARI, Maxwell KYERE, Khanna MIKHAEL, and Dennis OCHAYA, did not.

5. On a question of parity, the offender’s forecasted sentence depends at least in part on where he sits in any notional hierarchy, to the extent that there is one.

6. The amount involved is a relevant feature to consider on sentence, but it is not determinative. It is similarly relevant on any bail determination.

7. The Crown submits, in short, that given the terms of imprisonment set in respect of Mr NZERIBE and Mr OGBEIDE, a term of full-time imprisonment in respect of the offender is “realistically inevitable”, [1] having regard to the objective seriousness of the offences, the need for general deterrence, and the maximum penalties; counts 3, 5, 6, 8 and 9 carry 20 years, counts 2, 4, 7, and 10, 15 years, count 1, 5 years and count 11, 3 years.

   1. Crown Submissions, 31 January 2023, page 2.

8. Mr NZERIBE received a 45% combined discount. Mr OGBEIDE received a 35% combined discount. The offender will receive a 10% discount, having pleaded guilty just prior to trial.

9. Although it is a critical part of any sentencing exercise, the Crown provided almost no information of the subjective circumstances of Mr NZERIBE and Mr OGBEIDE. This included knowing only that Mr OGBEIDE had committed three previous offences of dealing with proceeds of a similar kind, and where he committed his latest offences in breach of a Community Corrections Order, increasing the need for specific deterrence in his case. This was a matter not revealed in the Crown’s “co-offender table”, [2] but which was known to the Crown and revealed only on questioning from the Bench. Despite asking, I received no answer to why this information was not in the table.

   2. Crown Submissions, 31 January 2023.

10. There was much more information, including not only as to the various subjective cases, but the statements of facts upon which the other participants were sentenced, and their criminal records, that could easily have been included. Apart from demonstrating a lack of candour, such information is necessary in making an accurate forecast as to the offender’s sentence thus increasing the likelihood of any finding of the inevitability of full-time imprisonment. Indeed, that kind of information in my view is critical to acceding to any detention application, when parity is an issue and where a term of full-time imprisonment is not otherwise a foregone conclusion, or to use the words read into section 22B(1)(b) of the Bail Act 2013 (NSW), “realistically inevitable”. [3] Any remarks of the sentencing Judge might also have been of assistance, although I appreciate that the formal remarks on sentence are not always available.

    3. DPP (NSW) v Van Gestal [2022] NSWCCA 171 at [44].

11. In short, in any argument on parity, a table that provides only the offences and the overall penalty provides almost no assistance.

12. The Crown accepts that Mr NZERIBE is above the offender in the hierarchy. That is obvious given that his offending involved amounts almost double that of the offender and where Mr NZERIBE is clearly an organiser and did not subject himself to the risky tasks carried out by the offender.

13. Mr NZERIBE was sentenced in relation to 10 offences (and an additional 14 matters on a Form 1) to a total aggregate sentence of 5 years and 4 months imprisonment. There is some overlap in the charges for counts, 8, 9, 5 and 3, for which he was sentenced to 19, 18, 31 and 18 months respectively, including another matter not faced by the offender where the indicative term was 30 months. Nothing is known of Mr NZERIBE’s conduct in respect of the other offences.

14. Mr OGBEIDE was sentenced to an aggregate term of 3 years and 10 months imprisonment in respect of 6 offences (and an additional 5 matters on a Form 1) again with little other information being provided.

15. I have also read the offender’s statement of facts in assessing the objective seriousness of his offending to form a view about whether or not the offender’s sentence requires a full-time term of imprisonment, separate from any consideration of parity.

Objective Seriousness

16. This is a case where there is no neat hierarchy, with each participant, including those who received non full-time sentences, playing an important (but not completely known) role within the structure.

17. It is arguable that Mr OGBEIDE had a greater and more trusted role than the offender given that Mr OGBEIDE was at least a conduit between Mr NZERIBE and the offender. It is also arguable that Mr OGBEIDE obtained money for very few active risky steps and so likely performed a greater role; that he was not a mere conduit, but rather a sophisticated operator in the use of deceptive invoices; and that he, unlike the offender, was deeply involved in the overseas components of the operation. I have had to accept that characterisation put on the offender’s behalf, in circumstances where the Crown, who bears the onus of satisfying me of the realistic inevitability of full-time gaol, did not provide me with any statement of facts in any of the other cases, and where it did not demur.

18. It is also arguable that the offender’s role and importance can be assessed by reference to the amounts he received. In respect of Count 3 – Mr JAFARI, who received an 18 month Intensive Correction Order, received 30% of the funds, with the offender receiving only 10%. The Crown argues that this may be attributable to the greater risk taken by JAFARI. It might, however, be equally attributable to the offender’s lesser role and importance in that transaction. It is clear that the offender was acting on the instructions of others, including at times Mr NZERIBE and perhaps Mr OGBEIDE.

19. The facts make clear that the offender was responsible for finding those willing to use their bank accounts to receive funds and liaising with that person to obtain either cash or gold bullion, which he provided to NZERIBE. It is accepted that the offender was involved, as were all players, in a complex criminal syndicate, with at least 7 participants over a period of about 5 months for financial reward.

Subjective matters

20. Very little is known about the offender’s subjective case, other than that he is only 25 (and where the ages of the other participants are unknown), making rehabilitation an important feature of any sentence, and that he has no criminal record of any kind, unlike at least one of the other participants.

Deterrence

21. It is also accepted that any sentence will need to take into account general deterrence. Not knowing whether or not the offender’s case is an unusual one will temper any possible finding in that regard.

22. It will be taken into account on sentence that the offender has already spent three and a half months in full time custody, for the first time in his life, before being placed on stringent bail for many months. That will be relevant to matters of rehabilitation, punishment, the need to mark the condemnation by the community, and the need to provide general and specific deterrence.

23. It is arguable that the offender poses no risk to the community, where without Mr NZERIBE and Mr OGBEIDE, the offender would have been unable and unlikely to have committed these offences, where he has had the experience of full time imprisonment, and has committed no breaches on bail. It is submitted (without evidence) that he is currently in gainful employment. In that respect the Crown does not assert that there is anything in the offender’s subjective case that makes full time imprisonment more likely.

Orders

24. Overall, I have formed the view that there is at least a prospect that the offender will receive a term of imprisonment of 3 years or less, and that an Intensive Correction Order is an option open to the sentencing Judge. Accordingly, I have been unable to conclude that it is realistically inevitable that the offender will be sentenced to imprisonment to be served by full-time detention.

25. The Crown’s detention application fails.

26. The offender’s bail is to continue.

**********

Endnotes

Amendments

21 March 2023 - Amendment to Parties name

Decision last updated: 21 March 2023