R v Tanya Youkhana - [2011] NSWDC 63

District Court

New South Wales

Medium Neutral Citation: R v Tanya YOUKHANA [2011] NSWDC 63
Hearing dates: 22 February 2011
Decision date: 22 February 2011
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Count 1 - Financial reporting offence. Recognisance release order 1 year.
Count 2 - Proceeds of crime offence. NPP 1 year 6 months with a balance of sentence of 6 months. The total effective sentence is 2 years with a NPP of 1 year 6 months.

Catchwords: CRIMINAL - Proceeds of crime - Conduct transaction to avoid reporting requirements - Operation Schoale
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Financial Transaction Reports Act 1988 (Cth)
Crimes Act 1914 (Cth)
Cases Cited: Qutami (2001) 127 A Crim R 369
Weininger (2003) 212 CLR 629
Rule [2003] NSWCCA 97
Qian (2010) 201 A Crim R 403
Olbrich (1999) 199 CLR 270
Segal [2006] NSWSC 621
Au [2001] NSWCCA 468
Edwards (2008) 183 A Crim R 83
Saliba [2010] NSWDC 277
Johnson [2010] NSWDC 242
Peisley [2010] NSWDC 240
Postiglione (1997) 189 CLR 295
Jimmy (2010) 269 ALR 115
Zamagias [2002] NSWCCA 17
Category: Sentence
Parties: Regina
Tanya Youkhana
Representation: Ms A Francis (Offender)
Ms F Gray (Director of Public Prosecutions)

File Number(s): 2008/258348

SENTENCE

The offender, Tanya Youkhana, stands for sentence today for two offences. The first offence is knowingly deal with the proceeds of crime pursuant to s 193B(2) Crimes Act 1900 (NSW). That offence carries a maximum penalty of fifteen years imprisonment. The second offence is that she conducted a transaction to avoid reporting requirements pursuant to s 31(1) of the Financial Transaction Reports Act 1988 (Cth).

Pleas of guilty to these charges were entered in the Local Court.

There are Agreed Facts before the Court. These charges arose out of an investigation conducted by the New South Wales Crime Commission and the New South Wales Police Force given the name Operation Schoale. As a result of this operation a number of people have been charged with significant offences.

One of those persons is a man by the name of Alen Moradian. The offender is the sister of Natasha Youkhana, who is married to Alen Moradian.

In late March 2007 the offender rented a house in Bilgola. There was no formal rental agreement. The offender moved into the partly furnished house in March 2007 with her then partner. There was discussion with the owner of the premises about planting of a vegetable garden.

The offender obtained a large amount of cash, sealed it in vacuum-sealed plastic bags, wrapped it and buried it in the garden of the house in Bilgola. The source of the cash buried by the offender was Alen Moradian and his associates. The offender buried the cash to conceal it from police. The offender did so in circumstances where she knew it was the proceeds of crime. Those circumstances included the use of the premises with no formal link to her or her family who had recently had search warrants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWDC 63
Decision Date: 22 February 2011

CaseChat Overview and Summary

The accused, Tanya Youkhana, was charged with two offences arising from her conduct in connection with Operation Schoale, a criminal investigation into illegal drug trafficking. The first count was a financial reporting offence, and the second count was a proceeds of crime offence. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether Ms Youkhana was guilty of the two criminal charges and, if so, what appropriate sentence should be imposed.

The court found that Ms Youkhana was guilty of both counts. The financial reporting offence was based on her involvement in a transaction that was intended to avoid the reporting requirements under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The proceeds of crime offence related to her possession of property that was reasonably suspected to be proceeds of crime. The court considered the evidence presented, including Ms Youkhana's role in the transaction and her knowledge of the criminal activities involved. The court was satisfied that the prosecution had established the charges beyond reasonable doubt.

In sentencing, the court noted the seriousness of the offences and the need for deterrence. It also considered the mitigating factors, including Ms Youkhana's early guilty plea and her cooperation with authorities. The court imposed a recognisance release order of one year for the financial reporting offence and a non-parole period of one year and six months with a balance of sentence of six months for the proceeds of crime offence. The total effective sentence was two years, with a non-parole period of one year and six months. The orders were designed to balance the need for punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Count 1 - Financial reporting offence. Recognisance release order 1 year.

Count 2 - Proceeds of crime offence. NPP 1 year 6 months with a balance of sentence of 6 months. The total effective sentence is 2 years with a NPP of 1 year 6 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Tanya YOUKHANA [2011] NSWDC 63
Hearing dates:	22 February 2011
Decision date:	22 February 2011
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Count 1 - Financial reporting offence. Recognisance release order 1 year. Count 2 - Proceeds of crime offence. NPP 1 year 6 months with a balance of sentence of 6 months. The total effective sentence is 2 years with a NPP of 1 year 6 months.
Catchwords:	CRIMINAL - Proceeds of crime - Conduct transaction to avoid reporting requirements - Operation Schoale
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Financial Transaction Reports Act 1988 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Qutami (2001) 127 A Crim R 369 Weininger (2003) 212 CLR 629 Rule [2003] NSWCCA 97 Qian (2010) 201 A Crim R 403 Olbrich (1999) 199 CLR 270 Segal [2006] NSWSC 621 Au [2001] NSWCCA 468 Edwards (2008) 183 A Crim R 83 Saliba [2010] NSWDC 277 Johnson [2010] NSWDC 242 Peisley [2010] NSWDC 240 Postiglione (1997) 189 CLR 295 Jimmy (2010) 269 ALR 115 Zamagias [2002] NSWCCA 17
Category:	Sentence
Parties:	Regina Tanya Youkhana
Representation:	Ms A Francis (Offender) Ms F Gray (Director of Public Prosecutions)
File Number(s):	2008/258348