Regina (Cth) v Nahi Nasri Gazal - [2017] NSWDC 65

District Court

New South Wales

Medium Neutral Citation: Regina (CTH) v Nahi Nasri Gazal [2017] NSWDC 65
Hearing dates: 20 June, 29 November 2016, 23 February 2017
Date of orders: 24 March 2017
Decision date: 24 March 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 The offender is convicted.
2 I impose a term of imprisonment of 19 months to date from 24 March 2017. The offender is to be released on a recognisance to be of good behaviour on 23 January 2018 after serving 10 months of that term of imprisonment. The term of the recognisance is 9 months in the sum of $500.

Catchwords: CRIINAL LAW – offence - plea of guilty – dealing with money reasonably suspected of being proceeds of crime
SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty
SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – custodial penalty – appropriate discount for plea of guilty
Legislation Cited: Crimes Act 1914 (CTH) ss. 16A(1), 16A(2), 20AB
Criminal Code Act 1995 (CTH) s.400.9(1)
Crimes (Sentencing Procedure) Act 1999 s21A(3)(k)
Cases Cited: Palijan v R [2010] NSWCCA 142
R v Scognamiglio (1991) 56 A Crim R 81
R v Wright (1997) 93 A Crim R 48 and
R v Lawrence [2005] NSWCCA 91
R v Olbrich (1999) 199 CLR 270
Shi v R [2014] NSWCCA 275
R v El Karhani (1990) 21 NSWLR 370
Johnson v The Queen (2004) 78 ALJR 616
R v Ly [2014] NSWCCA 78
Muldrock v R (2011) 244 CLR 120
Cameron v The Queen (2002) 209 CLR 330
Danial v R [2008] NSWCCA 15
Lee v R [2012] NSWCCA 123
Markarian v The Queen (2005) 228 CLR 357
R v Pogson (2012) 82 NSWLR 60
R v Cahill [2015] NSWCCA 53
Category: Sentence
Parties: Regina (The Crown)
Nahi Nasri Gazal (Offender)
Representation:
Counsel:

Ms P McDonald SC (The Crown)
Mr B Vasic (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (The Crown)
SF Legal (Offender)

File Number(s): 2012/00261962

Judgment

Nahi Nasri Gazal (the offender) appears for sentence after he pleaded guilty in the District Court to one count of dealing with money reasonably suspected of being proceeds of crime contrary to section 400.9(1) of the Criminal Code 1995 (Cth) (the Code).
The maximum penalty for the offence is 3 years imprisonment and/or a fine of $32,400.

Factual issues

On 5 March 2011 the offender received a cardboard box containing between $504,000 and $800,000 in cash (the cash). He then deposited some of the cash into bank accounts operated by him and directed the co-offender to do the same. A total amount of $484,100 was deposited into the various bank accounts. The offender then transferred the sum of $350,000 from bank accounts operated by him to the bank accounts of 2 foreign corporations. By his plea of guilty, the offender accepts that he dealt with the cash when there were reasonable grounds…

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: [2017] NSWDC 65
Decision Date: 24 March 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the Commonwealth of Australia, represented by Regina, brought charges against Nahi Nasri Gazal for dealing with money reasonably suspected of being proceeds of crime. The defendant entered a plea of guilty. The court had to determine the appropriate sentence for the defendant, considering both mitigating and aggravating factors, and taking into account the objective seriousness of the offence, as well as the principles of specific and general deterrence. The court also needed to assess the appropriate penalty, including any discount for the defendant's early guilty plea, and ensure that the sentence reflected community values, while also considering the defendant's remorse and contrition.

The court examined the nature of the offence, which involved the defendant dealing with approximately $1.5 million in cash. The court considered that the defendant's actions showed a degree of sophistication and planning, which warranted an aggravating factor. However, the court also took into account the defendant's early guilty plea, which entitled him to a discount of one-third of the sentence. The court further considered the defendant's background, including his age, his family circumstances, and his otherwise good character, as mitigating factors. The court determined that the appropriate penalty should reflect the objective seriousness of the offence, as well as the principles of specific and general deterrence.

The court found that the appropriate penalty for the defendant's offence was a term of imprisonment of 19 months, to be served from 24 March 2017. The court also ordered that the defendant be released on a recognisance to be of good behaviour on 23 January 2018, after serving 10 months of the sentence. The term of the recognisance was set at 9 months, in the sum of $500. The court considered that this sentence reflected the objective seriousness of the offence, while also taking into account the mitigating and aggravating factors, as well as the principles of sentencing.

The court made the following orders: the defendant is convicted; the term of imprisonment is set at 19 months, to be served from 24 March 2017; the defendant is to be released on a recognisance to be of good behaviour on 23 January 2018, after serving 10 months of the sentence; and the term of the recognisance is set at 9 months, in the sum of $500.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a term of imprisonment of 19 months to date from 24 March 2017. The offender is to be released on a recognisance to be of good behaviour on 23 January 2018 after serving 10 months of that term of imprisonment. The term of the recognisance is 9 months in the sum of $500.

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

Full text does not contain this section.

Medium Neutral Citation:	Regina (CTH) v Nahi Nasri Gazal [2017] NSWDC 65
Hearing dates:	20 June, 29 November 2016, 23 February 2017
Date of orders:	24 March 2017
Decision date:	24 March 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 The offender is convicted. 2 I impose a term of imprisonment of 19 months to date from 24 March 2017. The offender is to be released on a recognisance to be of good behaviour on 23 January 2018 after serving 10 months of that term of imprisonment. The term of the recognisance is 9 months in the sum of $500.
Catchwords:	CRIINAL LAW – offence - plea of guilty – dealing with money reasonably suspected of being proceeds of crime SENTENCE – mitigating factors – aggravating factors – circumstances – objective seriousness – specific deterrence – general deterrence – appropriate penalty SENTENCE PRINCIPLES – parity – totality – community values – remorse – contrition – onerous penalty – custodial penalty – appropriate discount for plea of guilty
Legislation Cited:	Crimes Act 1914 (CTH) ss. 16A(1), 16A(2), 20AB Criminal Code Act 1995 (CTH) s.400.9(1) Crimes (Sentencing Procedure) Act 1999 s21A(3)(k)
Cases Cited:	Palijan v R [2010] NSWCCA 142 R v Scognamiglio (1991) 56 A Crim R 81 R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91 R v Olbrich (1999) 199 CLR 270 Shi v R [2014] NSWCCA 275 R v El Karhani (1990) 21 NSWLR 370 Johnson v The Queen (2004) 78 ALJR 616 R v Ly [2014] NSWCCA 78 Muldrock v R (2011) 244 CLR 120 Cameron v The Queen (2002) 209 CLR 330 Danial v R [2008] NSWCCA 15 Lee v R [2012] NSWCCA 123 Markarian v The Queen (2005) 228 CLR 357 R v Pogson (2012) 82 NSWLR 60 R v Cahill [2015] NSWCCA 53
Category:	Sentence
Parties:	Regina (The Crown) Nahi Nasri Gazal (Offender)
Representation:	Counsel: Ms P McDonald SC (The Crown) Mr B Vasic (Offender) Solicitors: Commonwealth Director of Public Prosecutions (The Crown) SF Legal (Offender)
File Number(s):	2012/00261962