R v Yousif (No 2)

[2020] NSWDC 386

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Yousif (No 2) [2020] NSWDC 386

Hearing dates:

24 February – 3 March 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The aggregate term of three years imprisonment, to be served by way of an intensive correction order.

Catchwords:

Criminal law sentencing - joint criminal enterprise - participate in criminal group - knowingly taking part in the supply of a prohibited drug - use false document to influence exercise of a public duty - extra curial punishment 

Legislation Cited:

Crimes Act 1900

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Einfeldv R [2010] NSWCCA 87

Prculovski v R [2010] NSWCCA 274

R v Fangaloka [2019] NSWCCA 173

R v Tuki (No 4) [2013] NSWSC 1864

Wat v R [2017] NSWCCA 62

Wuangv R [2017] NSWCCA 312

Category:

Sentence

Parties:

Regina (Crown)
Alina Yousif (Offender)

Representation:

Counsel:
P Kerr (Crown)
D Edwardson QC (Offender)

Solicitors:
L Sampson (Crown)
A Taleb (Offender)

File Number(s):

2017/00368997

Judgment

1. HIS HONOUR: Alina Yousif appears for sentence. She was charged with three offences:

1) Participate in a criminal group in contravention of s 93T(1) of the Crimes Act 1900,

2) Use a false document with the intention of inducing a person to accept it as genuine and to then influence that person to exercise a public duty in contravention of s 254(b)(iii) of the Crimes Act, and

3) Knowingly taking part in the supply of a prohibited drug, namely 55.5 grams of methylamphetamine in contravention of s 25(1) of the Drug Misuse and Trafficking Act 1985.

2. The offence of participating in a criminal group attracts a maximum penalty of five years imprisonment. The offence of use a false document to influence a public official carries a maximum penalty of ten years imprisonment. The offence of supplying a prohibited drug carries a maximum penalty of 15 years imprisonment and/or a fine of $220,000. No standard non‑parole period applies.

3. She was arraigned before a jury on 24 February 2020 and pleaded not guilty. She gave evidence on 2 March 2020. The jury found her guilty of all counts. They rejected her account.

4. The offender was a solicitor. She was in a relationship with Clinton Parkinson. He was a member of the Bandidos motorcycle club and a criminal. She met him while he was in gaol having been re-sentenced by the Court of Criminal Appeal in 2010 following a successful Crown appeal in relation to the supply of 563.3 grams of methylamphetamine and the possession of firearms.

5. He was released on parole on 12 July 2016. By August 2017 New South Wales police commenced a targeted investigation into his conduct. A number of telephone warrants were granted for the mobile phone services of Mr Parkinson and the co-offender David Oddy (the supply charge).

6. A number of audio and visual surveillance devices were placed in Mr Parkinson’s home which he shared with Ms Yousif.

Knowingly Take Part in Supply of 55.5 grams of Methylamphetamine

7. Mr Parkinson and Mr Oddy had an agreement for Oddy to travel to Melbourne to pay for and collect the drugs then return the drugs to Albury. The drugs would then be on-sold by Parkinson. It was Parkinson’s operation and Oddy was the courier to collect the drugs and convey them to Parkinson for supply by Parkinson.

8. The recording from 1 November shows Oddy coming to the premises with money and discussing with Parkinson the amount of that money. Oddy says things such as,

“Here’s 9 from Mick and 9 from me,” and,

“I’ll have more money for you tomorrow”.

9. At some point Yousif enters the room and says,

“I’ve counted 6 grand. Do you want me to put it in a bundle?”

10. In essence, and in accordance with the jury’s verdict, this is the level of her criminality, that is, counting or re-counting money. Her evidence was that she was re-counting money that Parkinson had asked her to count and at his direction.

11. Mr Edwardson submits that the Court can be satisfied that this is the case and it is not inconsistent with the jury’s verdict. I accept that submission.

12. The offender, Yousif is recorded offering to contribute some of her own money which was rejected by Parkinson. The aide memoire from the trial reads as follows:

“Yousif: ‘Do you want me - if I pull out 2,000 from my account?’

Parkinson: ‘No, only if I really needed it. I’ve got it, I’ve just got to chase it up. Dave’s getting it now’.

Yousif: ‘I can pull it but then you’ve just got to give it back to me’.”

13. I am satisfied on balance that the offender Yousif did not contribute to the original money being counted and that the offer of $2,000 was not taken up. It never materialised.

14. There is no evidence that she was to be a financial recipient upon the supply of the drugs.

15. The role of the offender was to count the money. She played no further role.

16. I am satisfied that her conduct is at the lowest end for the scale of seriousness. In my view, her objective conduct does not cross the s5 threshold. The offending does not warrant a term of imprisonment.

17. The Crown submits that the offender’s conduct in “counselling” Oddy after he was apprehended by police is compelling evidence of her involvement in the prohibited drug supply.

18. It is unclear if her “counselling” was as a friend of Oddy, a friend of Parkinson or as solicitor giving advice to Oddy. What is clear is that at the time of “counselling” the offence had been completed. In my view it cannot be used in determining the objective seriousness of the offence. The offence had been completed upon the interception of the motor vehicle which occurred prior to the “counselling”.

19. The Crown submits that s 21A(2)(o) (the offence was committed for financial gain) is an aggravating factor. It makes the bald submission without any reference to authority.

20. It is well-established that s 21A(2)(o) should not be taken into account to aggravate a penalty where the factor is an element or inherent characteristic of the offence for which the offender is being sentenced unless its nature or extent exceeds the norm.

21. In cases concerning offences against the Drug Misuse and Trafficking Act where an inherent characteristic of the class of offence is charged, it has been held that financial gain must not be treated as an aggravating factor unless the financial gain was significant and above that expected in the lowest level of offending for the type of offence: Prculovski v R [2010] NSWCCA 274; Wat v R [2017] NSWCCA 62 ; Wuangv R [2017] NSWCCA 312.

22. Prculovski concerned an offence contrary to s 25A of the Drug Misuse and Trafficking Act and Wat concerned an offence of knowingly take part in the supply of a large commercial quantity contrary to s 25(2) of the Act.

23. In Wat the Court of Criminal Appeal considered that for that type of offence it will almost inevitably be the case that an inherent characteristic is financial gain.

24. The charge of supply carries with it an inherent characteristic of financial gain. I, for my part, am somewhat surprised that the Crown would make a submission that is contrary to authority. It did and I rejected that submission.

Participate In A Criminal Group In Contravention Of S 93t(1) Maximum Penalty Five Years

Use a false document with intention of inducing a person to accept it as genuine and to then influence that person to exercise a public duty in contravention of s 245(b)(ii) of the Crimes Act, maximum penalty ten years.

25. Parkinson facilitated the supply of a false Indian driver’s licence to Danny Kerney so that Kerney could obtain an unrestricted New South Wales motorcycle licence. Parkinson directed Yousif to assist Kerney to attempt to fraudulently obtain an unrestricted driver’s licence. Parkinson also organised the supply of a false letter of authenticity purportedly from the Indian Consulate.

26. In July 2017 Parkinson himself successfully exchanged a fake Indian driver’s licence for an unrestricted New South Wales motorcycle licence.

27. On 19 October 2017 Kerney contacted Parkinson in relation to arranging the purchase of a fraudulent Indian driver’s licence. Parkinson told Kerney that he had done the same thing himself in mid-2017 by using a false document to obtain an unrestricted New South Wales driver’s licence.

28. It was agreed between Kerney and Parkinson that Parkinson would contact a person in Sydney to arrange for the fraudulent licence to be produced.

29. On 6 November 2017 Parkinson contacted a male in Sydney and arranged for a false Indian driver’s licence to be manufactured for Kerney at a total cost of $1,200, in addition to a deposit that he had already paid. Kerney forwarded a photograph of himself and his current Victorian driver’s licence to Parkinson who then forwarded it to the male in Sydney.

30. On 17 November 2017 a surveillance device recorded a conversation between Yousif and Parkinson during which they discussed Kerney’s licence. Yousif asked Parkinson whether the RMS was going to check Kerney’s fraudulent Indian licence and Parkinson responded that:

“They won’t have the resources to check it”.

31. Yousif and Parkinson discussed that it will be easy to exchange the fraudulent Indian licence for a New South Wales licence at Albury RMS as Parkinson had done it for himself previously. They discussed what to tell the person at RMS if they asked about the licence.

32. On 18 November 2017 Kerney attended the Albury Service New South Wales offices where he transferred his Victorian licence to a New South Wales licence stating that he now lived at an address in Lavington. Kerney provided his driver’s licence and birth certificate as proof of identification.

33. The same day Kerney booked an on-road riding test to be conducted on 22 November. Kerney showed the fraudulent Indian driver’s licence to the RMS official with the intention of obtaining a full unrestricted rider’s permit by the International driver’s licence recognition scheme. Without the fraudulent Indian licence Kerney would have been subject to the provisional licence restrictions and would not have been able to ride in the Bandidos national run to Tasmania.

34. Kerney presented the fraudulent Indian licence which was retained by an RMS official. Kerney was informed by the official that he was required to obtain further proof to establish that the licence was legitimate. Kerney subsequently arranged with Parkinson for a fraudulent Indian driving licence verification certificate purporting to be from the Indian Consulate to be produced by the same male in Sydney.

35. A surveillance device recorded a conversation between Yousif, Parkinson and Kerney where they discussed the fraudulent licence and Indian Consulate letter. Parkinson asked Yousif to go to the RMS with Kerney and she agreed, stating that she can tell the officer at the RMS that she is a Justice of the Peace and can certify the fraudulent Indian Consulate letter in order to obtain the licence for Kerney.

36. On 23 November Yousif and Kerney attended the RMS office in Albury and produced the fraudulent Indian driving licence verification certificate to Ms Fiona Bolton, an RMS official. A copy of the document was damaged. Ms Bolton questioned Kerney about the document and the damage to it. Yousif asked Ms Bolton if she, Yousif, could verify the legitimacy of the document because she was a Justice of the Peace. Checks with the Indian Consulate confirmed that the licence and consulate letter was not legitimately issued.

Objective Seriousness

37. Section 93T was introduced in recognition of the fact that crimes committed by gangs are a far greater threat to safety and wellbeing of the community than most crimes committed by individuals acting alone: R v Tuki (No 4) [2013] NSWSC 1864 at [154].

38. Subsection 4A has as its focus any person who is in effect not only involved in a group engaged in criminal activities but directs the activities of three or more persons in pursuit of those criminal activities. Parkinson was the director of the activities concerning the obtaining of the false Indian driver’s licence for his friend Danny Kerney. Parkinson directed the steps necessary to carry out the enterprise.

39. The offender was part of the plan to deceive an employee of Service New South Wales to exercise a public duty, namely to issue Kerney with an unrestricted New South Wales driver’s licence so that Kerney could ride a motorcycle of a particular engine capacity on a national run to Tasmania with the Bandidos outlaw motorcycle gang.

40. The conduct was intended to bypass the legitimate checks and balances in place in New South Wales to ensure that drivers and riders of motor vehicles and motorcycles on public roads are properly educated, trained, experienced and authorised to do so. It was “a scam” that involved payments to third parties to produce documents.

41. It is an offence of dishonesty and in particular dishonesty directed towards a public servant in the discharge of a public duty. The subject matter and the ultimate purpose of the deception must form a component of the analysis.

42. The subject matter is a class of motorcycle licence and there is not an apparent basis for inferring a motive of financial gain and that the offender attempted to assist in the deception to secure one class of motorcycle licence, namely a higher unrestricted class of licence in preference to another.

43. The purpose of the group was singular which is to obtain a licence. Her role as part of that group occurred between 1 November 2017 and 23 November 2017. It was in existence for less than one month.

44. There is a factual overlap with these two offences which requires a significant degree of concurrency. Her role was limited to attending the RMS with Kerney on 23 November at the direction of Parkinson. She knew that the letter from the Indian Consulate was false.

45. It is submitted on behalf of the offender that she was offering to certify that she had seen the letter from the Indian Consulate before it was torn. This may be so but she knew that the document before it was torn was false. She also knew that Parkinson had engaged in the same scam previously.

46. Her attendance, in my view, was for a singular purpose and that was to assist Kerney knowing he was using a false document to obtain a licence. She, as a solicitor (Justice of the Peace as she said) knew full-well that her conduct was unlawful. She did not go as an innocent bystander or as a friend, she went with the intent of using her position and knowledge in assisting in the pulling of the wool over the eyes of Service New South Wales.

47. I accept that there was to be no financial gain on the part of the offender.

48. The gravamen of the offending is that she, as a practising solicitor, accompanied Kerney to endorse and add weight to the legitimacy of the fake letter of authority. She, by her actions, has brought the legal community into disrepute. She exhibited no moral compass. It was a serious breach of her professional obligations. It warrants a term of imprisonment.

49. No solicitor should act the way that she did. It was not a case of recklessness. It was intended. It was a gross breach of her professional obligations. It was a serious form of offending.

50. I do not accept Mr Edwardson of Queen’s Counsel contention that it was at the lower end of the range of seriousness. He submits that she was not a crucial player. In my view, by her attendance at the RMS, she attended with the intention of assisting Kerney to obtain a licence knowing full-well that the document was fraudulent. This attempt by her, in my view, made her a crucial player in the fraud that was to be occasioned to RMS.

Subjective Features

51. She was 26 years of age at the time of offending with no prior convictions. She is entitled to leniency.

52. It would appear that her childhood was a troubled one. She was born in Iraq. Her family were minority Assyrian. Her family fled Iraq when she was two. They lived in Jordan for some time before coming to Australia. She was five when the family arrived.

53. She said her father was alcohol-dependent and violent. The degree of violence is questionable although this claim is supported by her mother. She claims on one occasion her father disciplined her with a belt and sometimes she would hit her with a shoehorn.

54. It is questionable without knowledge of the repetition of the conduct whether that amounts to social deprivation and enlivens the Bugmy principles. I think it does not.

55. However, I do note that she saw a psychologist for assistance in June 2012 and presented with symptoms of depression and post-traumatic disorder referrable, according to the psychologist, to her overbearing father.

56. She studied law and economics at the University of New South Wales and completed her degree and commenced work as a solicitor. She commenced with the Aboriginal Legal Service in Griffith on 17 October 2016.   Later she fell into a toxic relationship with Mr Parkinson. The lure of love with a bikie criminal and the use of drugs was her undoing. He was described by police as “a grub”. She was bashed by him on more than one occasion.

57. Shortly prior to the drug run by Oddy, she attended hospital as a result of facial injuries caused by Parkinson. He was dominant, she was subservient.

58. It is in this setting that she counted the money for the drugs and attended the RMS.

59. I do not accept a causal connection between her mental illness and the commission of the offences. However she did things to placate him to avoid ongoing domestic violence.

60. She spent 14 days in gaol before receiving Supreme Court bail. The bail conditions have been onerous. They amount to a form of quasi-custody. They included a house arrest condition, direct supervision condition and reporting daily to police. I take those onerous bail conditions into account in an instinctive synthesis of sentencing in determining the appropriate sentence.

61. The offender, after relinquishing her practising certificate, has tried to reinvent herself. She has found fulltime employment as a project general manager with iPile. She is intending to commence an online Bachelor of Construction Management with the University of South Australia. She has her employer’s backing.

Prospects of Rehabilitation

62. The offender has excellent prospects of rehabilitation. Prior to the offending she was of good character and the offences are uncharacteristic and borne out by a toxic relationship with Mr Parkinson. She has not offended while she has been on bail. She contributes to the community by way of her employment and volunteer work.

63. The defence bundle contains testimonials which talk very highly of her. She is engaged with a program at St Mary’s Cathedral, Sydney. She is undertaking a significant amount of urinalysis testing over the period that she has been on bail with negative results.

64. There is a sentence assessment report dated 19 June 2020 which informs me of the following.

“Ms Yousif is currently residing with her parents and sister in stable accommodation. Ms Yousif has a support and pro-social family. Ms Yousif is currently employed for a civil engineering company. Ms Yousif has an extensive work and educational history. She has no prior convictions. She expressed that she had no way out of the situation as she was in an abusive relationship and done as what she was told out of fear. Ms Yousif has stated that she was in an abusive relationship at the time of the offence and was suffering anxiety and depression as a result. She is currently engaged with a psychologist. Ms Yousif has expressed that she is aware of the impacts her offending have on the community stating she is fully aware how ice can effect people’s lives and their family. She has expressed a willingness to undertake intervention. She had already engaged with a psychologist and says that she will continue to engage with that Service. She has expressed a willingness to undertake community service work if she is required. She has been assessed as a low risk of reoffending. Community Corrections has assessed Ms Yousif is suitable to undertake community service work”.

Extra Curial Punishment

65. In Einfeld v R (2000) A Crim R 1; [2010] NSWCCA 87, the Court considered extra curial punishment.

66. Mr Einfeld, who had been a former Justice of the Federal Court, did not oppose the withdrawal of his commission as Queen’s Counsel and the striking of his name from the roll of legal practitioners.

67. In this case, Ms Yousif relinquished her practising certificate and it is highly likely a move will be made to remove her name from the roll of legal practitioners.

68. Basten JA at [97] said:

“In a younger practitioner with expectations of ongoing legal practice on a fulltime basis over a number of years, the loss of professional status would have financial consequences of a serious kind”.

69. That passage is apposite to this offender. She was a young practitioner who has lost the expectation of an ongoing practice with resultant financial consequences.

70. On the authorities it is legitimate to treat extra curial punishment as a mitigating factor of sentence and I do so.

PARITY

Supply

71. A different sentence is warranted for this offender than her co-accused. I sentenced Parkinson to an indicative term of three years and six months. He had an extensive prior history including the supply of over 500 grams of methylamphetamine. It was his operation and his alone.

72. Oddy was sentenced to two years and four months. He had a criminal history and was disentitled to leniency. He was the courier and played a significant role in the transfer of money, the buying of the drugs and the shipment into New South Wales.

73. This offender had a short and small involvement. She counted the money. I have previously made a finding as to her low level of offending.

Criminal Gang

74. I imposed an indicative sentence of three years on Mr Parkinson for directing the activities of the group. He brought the group into existence. He was the controller, she was not. She was involved with the group for a short period of time, he was not. It was he who dealt with the forger in Sydney, she did not.

False Document

75. I imposed an indicative term of two years on Mr Parkinson. It was argued the offender attended the RMS at his request. She did so to provide gravitas to the situation. In my view, it was an aggravating feature that she was a solicitor and was attempting to misuse her position. Her sentence should be greater than that which I imposed on Mr Parkinson. That is so because general deterrence is particularly important in her case due to the position that she occupied.

76. Mr Kerney was dealt with in the Local Court. A different statutory maximum applied. The sentence was one of ten months which was time served. Kerney was dealt with before Parkinson and this offender. As I have said before, general deterrence is the major sentencing consideration for the offender. By her actions she tarnished the whole of the legal profession.

SENTENCE

77. The major sentencing considerations are general deterrence. Specific deterrence has a lesser role due to her time in custody and onerous bail conditions. One of the other sentencing considerations is the denunciation of her conduct.

INDICATIVE SENTENCES

Count 3: Supply a Prohibited Drug

78. I place the offender on a community correction order for 12 months with the following conditions:

1) Not to commit any offence.

2) Appear before the Court if called upon.

3) To perform 100 hours of community service work.

4) To telephone the Fairfield Community Corrections Office within seven days.

Count 1: Participate in the Activities of the Criminal Group

79. The indicative sentence is one year and six months imprisonment.

Count 2: Use False Document to Influence Exercise of Public Duty

80. The indicative term is two years and six months imprisonment.

I impose an aggregate term of three years imprisonment.

81. Section 7(1) of the Crimes (Sentencing Procedure) Act provides to the court that has sentenced an offender to imprisonment in respect of one or more offences may make an intensive correction order directing that the sentence be served by way of an intensive correction order in the community.

82. A three-step process is involved. First, the Court must be satisfied that having considered all possible alternatives no penalty other than imprisonment is appropriate. I am so satisfied.

83. Second, if a sentence of imprisonment is appropriate the Court determines the length of the sentence without regard to how it is to be served. In this case I have determined that an appropriate sentence is three years.   

84. The Court must then consider whether any alternative to fulltime imprisonment should be imposed. The power to consider imposing an ICO invites a further question concerning the basis upon which a court should decline to consider imposing one. Relevant to this is the need for adequate punishment, general deterrence, denunciation or for recognising the harm done to victims and the community.

85. When considering community safety the Court must assess whether making the order or serving the sentence by way of fulltime detention is more likely to address the offender’s risk of reoffending. This requirement recognises the community safety is not achieved simply by incarcerating an offender but that incarceration may have the opposite effect.

86. The concept of community safety is linked with considerations of rehabilitation which is more likely to occur with supervision and access to programs in the community. However, while community safety can operate in different ways in different circumstances, the purpose of s 66 is “merely to ensure that the Court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity”: R v Fangaloka [2019] NSWCCA 173 at [66].

87. The Court must also consider the purposes of s 3A of the Crimes (Sentencing Procedure) Act and any relevant common law principles and any other matters. In R v Fangaloka the Court found that the paramount consideration whether to make an ICO is whether such an order or fulltime detention would be more likely to address the offender’s risk of reoffending. Unless a favourable opinion is reached as to that question, an ICO should not be imposed. [63].

88. In my view, the imposition of an ICO is more likely to address the offender’s risk of reoffending. She is still a relatively young person who lacked insight into her professional obligations as a member of the legal profession. Although she is on the road of reinvention, it is a long road with twists and turns requiring supervision to ensure community protection and alleviating the risk of her reoffending.

89. In relation to the aggregate term of three years imprisonment, it is to be served by way of an intensive correction order with the following conditions:

1) Not to commit any offence.

2) To be supervised by Community Corrections.

3) To undergo programs and/or treatment.

4) Not to consume illicit drugs.

5) To perform 400 hours of community service work.

6) To telephone the Fairfield Community Corrections Office within seven days.

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Amendments

19 August 2020 - Add (No 2) to case name

Decision last updated: 19 August 2020