Youkhana v R

[2013] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Natasha Youkhana v R [2013] NSWCCA 85

Hearing dates:

15 March 2013

Decision date:

26 April 2013

Before:

Hoeben CJ at CL - [1]
Slattery J - [2]
Bellew J - [3]

Decision:

1.Leave to appeal granted.

2.Appeal dismissed.

Catchwords:

CRIMINAL LAW - EVIDENCE - where applicant pleaded guilty to dealing with proceeds of crime and related offences - where facts asserted by the Crown on sentence were disputed - where Crown sought to prove disputed facts by relying upon representations of an unavailable co-offender pursuant to s. 65(2)(b) and s. 65(2)(d) of the Evidence Act - where sentencing judge admitted the representations - whether sentencing judge erred in concluding that the representations were made in circumstances that made it unlikely that they were a fabrication, or that made it likely that they were reliable - whether representations should have been excluded - whether open to the sentencing judge to conclude that he was satisfied beyond reasonable doubt of the disputed facts - no error in the decision of the sentencing judge to admit the representations - no error in the sentencing judge's conclusion that he was satisfied, o n the basis of the representations, of the disputed facts beyond reasonable doubt

SENTENCE - parity principles - whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender for a similar offence - where sentencing judge properly considered principles of totality - where the applicant charged with offences over and above those with which the co-offender had been charged - where the overall criminality of the applicant was substantially in excess of that of the co-offender - no error demonstrated - no justifiable sense of grievance made out - appeal dismissed

Legislation Cited:

Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Evidence Act 1995
Financial Transaction Reports Act 1988
New South Wales Crime Commission Act 1985

Cases Cited:

Harris v R [2005] NSWCCA 432
Hopley v R [2008] NSWCCA 105
House v The King (1936) 55 CLR 499
R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at 616
R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61
R v Tanya Youkhana [2011] NSWDC 63
R v Natasha Youkhana [2011] NSWDC 204

Category:

Principal judgment

Parties:

Natasha Youkhana - Applicant
Regina - Respondent

Representation:

Mr W C Terracini SC and Mr M P Tanevski (Applicant)
Mr J Pickering SC (Respondent)
Bannisters Lawyers - (Applicant)
S Kavanagh - Solicitor for Public Prosecutions (Respondent)

File Number(s):

2007/16952 2007/17249

Publication restriction:

Nil

 Decision under appeal 

Citation:

[2011] NSWDC 204

Date of Decision:

2011-12-20 00:00:00

Before:

His Honour Judge Haesler SC

Judgment

1. HOEBEN CJ AT CL: I agree with Bellew J and the orders which he proposes.

1. SLATTERY J: I agree with Bellew J.

1. BELLEW J: In 2006 and 2007 investigations undertaken by a joint taskforce known as "Operation Schoale" resulted in the arrest of a number of persons associated with the importation and subsequent sale of large quantities of cocaine. One of the senior figures in those activities was Alen Moradian ("Moradian") the husband of the applicant.

1. As a consequence of that investigation, the applicant was charged with, and pleaded guilty to, the following offences:

(i) dealing with the proceeds of crime (being an amount $4,642,135.00), contrary to s. 193B(2) of the Crimes Act 1900 ("the first count");

(ii) doing an act with intent to pervert the course of justice, contrary to s. 319 of the Crimes Act 1900 ("the second count");

(iii) giving evidence before the New South Wales Crime Commission which was, to her knowledge, false in a material particular, contrary to s. 20(1) of the New South Wales Crime Commission Act 1985 ("the third count"); and

(iv) conducting transactions so as to avoid reporting requirements, contrary to s. 31(1) of the Financial Transaction Reports Act 1988 ("the fourth count").

1. On 20 December 2011, his Honour Judge Haesler SC sentenced the applicant as follows:

(i)   as to the first count, a non-parole period of 2 years and 3 months commencing on 13 September 2012 and expiring on 12 December 2014, with a balance of term of 1 year and 6 months imprisonment expiring on 12 June 2016;

(ii)   as to the second count, a fixed term of 9 months imprisonment commencing on 13 June 2012 and expiring on 12 March 2013;

(iii)   as to the third count, a fixed term of 9 months imprisonment commencing on 13 March 2012 expiring on 12 December 2012; and

(iv)   as to the fourth count, a fixed term of 9 months imprisonment commencing on 13 December 2011 and expiring on 12 September 2012.

1. The applicant's overall sentence comprised a non-parole period of 3 years imprisonment commencing on 13 December 2011 and expiring on 12 December 2014, with a balance of term of 1 year and 6 months imprisonment expiring on 12 June 2016.

1. The applicant now seeks leave to appeal against the sentences imposed on the grounds more fully set out below.

THE FACTS

1. A document headed "Agreed Facts" was tendered before the sentencing judge. There was, however, one disputed factual matter which is relevant to the first two grounds of appeal. Leaving aside that issue (with which I have dealt separately below) the agreed facts may be summarised as follows.

The first count - dealing with the proceeds of crime: (Crimes Act 1900 (NSW) s. 193B(2))

1. The first count related to the applicant's dealing, in various ways, with cash totalling $4,642,135.00 in Australian currency between October 2005 and July 2007, that money being the proceeds of the importation of a quantity of cocaine by Moradian and his associates.

General expenditure by the applicant

1. The applicant's dealing in the cash included amounts spent by her in respect of:

(i)   the purchase of clothing, jewellery and watches;

(ii)   the cost of internal renovations to the premises which she shared with Moradian;

(iii)   the purchase of individual items for those premises including floor coverings, antiques, homewares, murals, ornaments, electrical and audio visual appliances and furniture;

(iv)   various costs associated with her wedding; and

(v)   general living expenses.

1. Some of the items referred to in (iv) above were purchased with the assistance of an interior designer, Michael Chard ("Chard"). Items purchased with Chard's assistance from the Versace store in Sydney alone totalled $652,544.00. The total amount expended on the applicant's residential premises was $975,894.00, the vast majority of those payments being made in cash.

The applicant's association with Alessio Torrelli

1. Part of the Crown case in support of the first count arose out of the applicant's association with Alessio Torrelli ("Torrelli") whom she had met some years previously. The Crown relied upon three discrete areas of dealing between the applicant and Torrelli, each of which was said to involve cash payments made by the applicant. They were as follows:

(i)   a series of "initial payments" to Torrelli;

(ii)   a cash payment of $910,000.00 to Torrelli; and

(iii)   a further cash payment of $1,000,000.00 to Torrelli.

1. It was the dealing in (iii) which was the subject of a factual dispute on sentence. The agreed facts in relation to the dealings in (i) and (ii) may be summarised as follows.

The initial payments made by the applicant to Torrelli

1. In early May 2006 the applicant gave Torrelli a sum of $10,000.00 in cash which Torrelli deposited into his bank account. In June 2006 the applicant met with Torrelli and told him that she had $20,000.00 in cash and wished to deposit that money into Torrelli's business account. She proposed that having done so, Torrelli could pay the money back to her as "salary" for professional services rendered by her, although there was no expectation on the part of either of them that any such services would be rendered. The applicant told Torrelli that the money came from her mother and that she would give him $1,000.00 for helping her. Torrelli agreed, and a short time later the applicant gave him $20,000.00 in cash. Torrelli later transferred amounts back into the applicant's bank account.

1. Subsequently, and prior to Torrelli undertaking a trip to the United States of America, the applicant asked Torrelli to collect a watch for her from a store in New York. Torrelli agreed and the applicant gave him $10,000.00 to finalise the purchase of the watch, which he converted into US currency. Whilst in New York, Torrelli in fact purchased two watches on behalf of the applicant for a total of AUD $34,579.00. The applicant placed $18,000.00 into Torrelli's account whilst he was absent from Australia.

1. Between 24 July 2006 and 1 September 2006 the applicant gave Torrelli a further amount of approximately $20,000.00 in cash. An arrangement was made between them that Torrelli would repay that money to the applicant over a period of six months. Torrelli subsequently made payments of $4,450.00, $4,750.00, $4,800.00 and $5,000.00 back to the applicant.

The cash payment of $910,000.00 made by the applicant to Torrelli

1. Following the execution of the first of two search warrants upon her residential premises, the applicant asked Torrelli if he would mind a sum of approximately $1,000,000.00 for her. Torrelli agreed and the applicant gave him a red sports bag full of cash, in which he counted 91 bundles each containing $10,000.00 in cash, covered in dirt and clay. Torrelli sought the assistance of a friend, Gabriel Maciel ("Maciel") to clean the money and to store it.

1. At the applicant's request, Torrelli subsequently returned an amount of $400,000.00 from the original sum of $910,000.00. By agreement with the applicant, Torrelli retained an amount of $80,000.00, some of which he distributed amongst various persons, including Maciel. The balance of the original sum of $910,000.00 was later returned to the applicant's sister, at the applicant's request.

The disputed cash payment of $1,000,000.00 made by the applicant to Torrelli

1. The Crown alleged that several days after his receipt of the amount of $910,000.00 referred to in [17], Torrelli met the applicant at the Westin Hotel in Sydney where he agreed to a request from the applicant that he mind a further amount of money for her.

1. Torrelli and the applicant subsequently met at Edensor Park, at which time the applicant gave Torrelli the keys to a rental vehicle. Torrelli left in that vehicle and drove it to his mother's house. He observed that there were two suitcases in the vehicle, one containing two packages and the other containing one. All three packages contained money which Torrelli decided to bury in his mother's garden. In the course of doing so, he split one of the packages which was covered in black waterproof tape. When he did so, Torrelli saw that the packaging contained smaller packages covered in black tape.

1. Torrelli later met with the applicant and returned the hire car. He then decided to remove the money from his mother's house and again contacted Maciel. Subsequently the money was stored at Maciel's premises.

1. During the course of storing the money, Torrelli and Maciel counted the bundles in the package that Torrelli had split when he was burying the money in his mother's garden. Torrelli counted 100 bundles of cash, each containing the sum of $10,000.00. It is not known how much cash was in the other two packages.

1. Subsequently, arrangements were made between Torrelli and the applicant for Torrelli to hand over to the applicant the three packages which were originally in the two suitcases (as outlined in [20] above). Torrelli met with the applicant at a railway station, and gave the applicant the keys to a rental car which contained the three packages.

The execution of search warrants on the applicant's premises

1. Search warrants were executed by police on the applicant's premises on 2 March 2007 and 27 July 2007. Following the execution of the first of those warrants, the applicant met Chard and asked him to reduce the amounts of the purchases which had been made with his assistance. She told Chard that she was "in trouble" in respect of the amount of money that she had spent and that she was going to say that "the purchases were made by family and friends as wedding presents". The applicant also offered, through her sister, to pay any legal expenses which Chard might incur as a result of assisting her as she had requested. Chard subsequently re-issued invoices to the applicant in respect of the items she had purchased with his assistance, and on which the GST and/or his commission had been removed.

1. A second search warrant was executed at the applicant's premises on 25 July 2007. Immediately prior to the execution of that search warrant, the applicant had attended the premises in a rental car. She was arrested and cautioned, whereupon police located a garbage bag on the back seat of the vehicle which contained twenty bundles of Australian currency. In the boot of the vehicle police located a black suit case which contained a total of thirteen bundles of Australian currency. The total amount of the currency located was $760,300.00.

1. Further, as a result of the execution of the search warrants, police located cash receipts in the name of the applicant totalling $14,208.00. These receipts were referable to the payment of (inter alia) council rates, house hold items, furniture, groceries and petrol.

The second count - doing an act with intent to pervert the course of justice (Crimes Act 1900 (NSW) s. 319)

1. On 7 May 2007 Torrelli was served with a summons to give evidence before the New South Wales Crime Commission ("the Commission"). After receiving that summons, Torrelli contacted the applicant and arranged a meeting with her. At that meeting the applicant and Torrelli discussed Torrelli's appearance before the Commission. Torrelli told the applicant that he would give evidence that the applicant had once been employed by him.

1. It should be noted that in 2004, the applicant and Torrelli (along with a third person) had attempted to set up a consulting business known as Fusion Technology Services. The business was largely a failure. To the extent that the business generated any income at all, it was minimal, and was derived from the efforts of Torrelli, at a time after the applicant's association with the business had ceased. At no stage did the applicant do any paid work for the business.

1. Torrelli later gave evidence to the Commission in accordance with his earlier indication to the applicant. Having done so, he contacted the applicant and advised her of what he had said.

1. Torrelli was later served with a Notice to Produce documents in relation to the work allegedly completed by the applicant for him. Torrelli contacted the applicant and she provided him with a number of invoices totalling $35,700.00, and which purported to outline work she had performed for Fusion Technology Services. Torrelli gave these documents to the police in response to the Notice to Produce.

The third count - giving evidence before the New South Wales Crime Commission which was, to the knowledge of the applicant, false in a material particular (New South Wales Crime Commission Act s. 20(1))

1. On 14 May 2007, the applicant gave evidence before the Commission. She was legally represented on that occasion, took an oath to tell the truth, and was warned that she may be prosecuted in relation to any false or misleading evidence that she gave. The applicant was also warned that she must not discuss any evidence she gave before the Commission.

1. In the course of her evidence, the applicant was asked questions regarding the movements of herself and Moradian during the period following the execution of the first search warrant on their residential premises. The applicant gave evidence that she had left her residential premises around that time and had resided at 'various hotels in the city' including the Shangri La Hotel. That hotel was one at which the applicant had stayed between 12 and 15 January 2007, at the time of her wedding. The bill for that stay amounted to $8,123.50, which was paid by the applicant in cash. That payment formed part of the evidence in support of the first count.

1. The applicant was questioned about the movements of Moradian at various times and, in effect, told the Commission that she was not sure of his whereabouts. Evidence obtained from listening devices and telephone intercepts established that at the time of giving this evidence, the applicant was in fact residing with Moradian at Manly.

The fourth count - conducting transactions to avoid reporting requirements (Financial Transactions Reports Act 1988 s. 31(1))

1. The applicant had a bank account solely in her name with the St George Bank, and a joint account with her sister Tanya at the ANZ Bank. During the period between 1 December 2005 and 31 May 2006 the applicant made 41 cash deposits totaling $386,172.75, such deposits being in amounts between $9,000.00 and $9,900.00. It is noted that although the facts before his Honour made reference to 37 transactions, there were 41 set out in an accompanying table. In his reasons for sentence, his Honour adopted the latter figure.

THE GROUNDS OF APPEAL

Ground 1 - the sentencing judge erred in admitting into evidence the statement of Alessio Torrelli

1. After giving evidence before the Commission, Torrelli provided an induced statement to the police dealing with a number of aspects of his relationship with the applicant, including the circumstances of the disputed payment of $1,000,000.00 upon which the Crown relied. Despite being served with a subpoena to attend the sentence proceedings and give evidence, he failed to do so. Although the sentencing judge issued a warrant for Torrelli's arrest, that warrant could not be executed.

1. In Torrelli's absence, the Crown made an application to the sentencing judge to tender his statement pursuant to the provisions of s. 65(2)(b) and/or 65(2)(d) of the Evidence Act ("the Act"). To the extent relevant for present purposes, s. 65 of the Act is in the following terms:

Exception: criminal proceedings if maker not available

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.

(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation:

(a) was made under a duty to make that representation or to make representations of that kind; or

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable; or

(d) was:

(i) against the interests of the person who made it at the time it was made; and

(ii) made in circumstances that make it likely that the representation is reliable.

1. Also relevant to the Crown's application were the provisions of s. 137 of the Act which are in the following terms:

Exclusion of prejudicial evidence in criminal proceedings

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

1. For the purposes of the Crown's application, senior counsel who appeared for the applicant at sentence conceded that:

(b) the Crown had given notice of the application under s. 67 of the Act;

(c)   Torrelli was "not available" to give evidence (s. 65(1)); and

(d)   the relevant representations were:

(i)   made shortly after the asserted facts had occurred (s. 65(2)(b)); and

(ii)   against the interests of Torrelli when he made them (s. 65(2)(d)).

1. Accordingly, the issues for determination by his Honour were whether Torrelli's representations were made in circumstances:

(i)   that made it unlikely that they were a fabrication (s. 65(2)(b)); or

(ii)   that made it likely that they were reliable (s. 65(2)(d)).

His Honour's judgment

1. In delivering judgment (R v Natasha Youkhana [2011] NSWDC 204) his Honour noted the concessions made on behalf of the applicant and also noted that in the event that he determined the application in favour of the Crown, a secondary issue would arise as to whether s. 137 of the Act warranted the exclusion of the representations.

1. Having set out the submissions of the parties, his Honour turned (at [19]) to the provisions of s. 65(2)(b):

"In my opinion Mr Torrelli, although he clearly is avoiding service, made a statement soon after the event in circumstances where he had been given an opportunity to avoid prosecution if he made a clear, verifiable and reliable account of his dealings with Ms Youkhana. The contents of the statement as far as his non-criminal relationship with Ms Youkhana were verifiable, as were payments, bank transfers and the like, which are evidenced by the annexures to the statement used by him in its preparation. He was, having previously lied to the Crime Commission, given an opportunity to be as accurate as he could, knowing that what he said would, and could, be checked. In those circumstances I find it unlikely what he said in the statement/representation (Exhibit Voir Dire D) was fabricated."

1. His Honour then turned (at [20]) to the provisions of s. 65(2)(d):

"As to the alternative test in s 65(2)(d), the statement clearly was against interest, a fact which is not contested by Mr Boulten. It is also, given the fact that it was, and could be, checked, made in circumstances that make it likely it is reliable. Clearly, the statement must be read with an understanding that, reliable or not, there was a clear motivation to downplay the extent of his involvement and exaggerate the culpability of others. That, of itself, does not cause me to reject its admission."

1. Having reached these conclusions his Honour then moved at [21] - [23]) to consider the application of s. 137 of the Act:

"These are clearly criminal proceedings and I have directed that the Evidence Act applied. I must weigh the probative value of the evidence against the danger of unfair prejudice which I note requires me to measure what are in fact incommensurables. That is not an unusual task given a judge. I must look to the evidence, the particulars of the case and use experience of the Court.

[22] It is clear that the evidence could rationally affect the assessment of the probability of a fact in issue and, if admitted, has considerable probative value: here, the extent to which Ms Youkhana dealt with the proceeds of crime. I must weigh against that the dangers I will use the evidence on some improper basis or unconnected with the issues of the case or in a way, for example, that would cause me to be satisfied to a lower degree of probability than would otherwise be required: see ALRC (1985) No 26 Vol 1 at [644]. Clearly, if the prosecution is to rely upon the statement it must, when weighed with all the other evidence, establish beyond reasonable doubt the extent to which Ms Youkhana dealt with the proceeds of crime before it can be applied as a matter in aggravation of the sentence I must impose.

[23] I am aware of the potential for improper use but I am also aware of the statement's significant probative value when it comes to my assessment of the overall gravity of the offending behaviour the subject of these sentence proceedings. The evidence is significant, it is probative, and the danger of unfair prejudice, with respect to Mr Boulten's submissions to the contrary, is unlikely. In the circumstances I propose to admit the statement of Mr Torrelli."

The submissions of the parties

1. For the purposes of this ground, as well as for the purposes of Ground 2, senior counsel for the applicant acknowledged the restrictions which are placed upon an appellate court in interfering with factual findings which are reached by a sentencing judge. Senior counsel acknowledged, in particular, that this Court is bound by his Honour's findings of fact unless it could be established that such findings were not open on the evidence, or unless some other error could be demonstrated in the sense referred to in House v The King (1936) 55 CLR 499 (see Hopley v R [2008] NSWCCA 105 per Johnson J at [28] and the authorities cited therein). Bearing in mind those principles, senior counsel made a number of submissions.

1. Firstly, he relied on the fact that when giving evidence before the Commission, Torrelli had denied that the applicant had provided him with the sum of $1,000,000.00 as alleged by the Crown, only to later admit in his statement that such evidence was false. He also submitted that it was relevant that there was no evidence before his Honour of the circumstances in which Torrelli had made his statement and that, more specifically, there was no evidence which might explain why Torrelli had changed his position from that which he adopted when giving evidence before the Commission. He also relied on the fact that when giving evidence before the Commission, Torrelli was questioned by a police officer who himself had since been convicted of serious criminal offences.

1. Senior counsel further submitted that Torrelli had an obvious incentive to exaggerate the involvement of the applicant. He pointed to the fact that Torrelli was an "informer" and submitted that this circumstance necessarily affected his reliability. All of these circumstances, he submitted, attracted the application of s. 165 of the Act.

1. Finally, senior counsel submitted that the evidence did not permit the sentencing judge to find that:

(a)   Torrelli was aware that the contents of his statement could be checked and verified;

(b)   Torrelli's statement had been made in circumstances that made it reliable; and

(c)   the likelihood of the entirety of the statement being reliable was demonstrated by the fact that the statement contained evidence which was not disputed by the applicant and which was consistent, at least in part, with her pleas of guilty.

1. Senior counsel for the Crown submitted that no error had been made out. Firstly, he submitted that the circumstances in which Torrelli's statement had been made were, to the extent that they were relevant, set out in the statement itself. In respect of the provisions of s. 165 of the Act, the Crown submitted that his Honour was necessarily aware of the fact that Torrelli was an "informer", and that it was clear that his Honour had given himself the relevant warning which was required by that section. The Crown further submitted that the mere fact that the circumstances may have attracted the application of s. 165 did not mandate the exclusion of the evidence.

1. Finally, the Crown submitted that in circumstances where Torrelli had given evidence before the Commission, and was thus aware of the fact he was under investigation, he would necessarily have been aware of the Commission's ability to check such assertions as he might make in any statement. In this regard, the Crown submitted that nothing whatsoever turned on the fact that the person who questioned Torrelli during the course of his evidence before the Commission had since been convicted of serious criminal offences.

1. In all of these circumstances the Crown submitted that his Honour's conclusions in respect of both s. 65(2)(b) and (d) were open.

Consideration and conclusion

1. In dealing with the provisions of s. 65(2)(b), and in light of the concessions made on behalf of the applicant, his Honour (at [15] of his judgment) correctly identified the issue as being whether the representations contained in Torrelli's statement were made in circumstances which rendered it unlikely that they were a fabrication. The circumstances which his Honour was entitled to take into account in determining that issue included events outside the time and place of the making of the representations (see R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 at 616; [37]).

1. In reaching his conclusion, his Honour had regard to the fact that:

(i)   aspects of the statement which dealt with Torrelli's "non criminal" relationship with the applicant were capable of independent verification;

(ii)   other assertions in the statement were verified by various accounting documents which were annexed to it, and

(iii)   Torrelli, having previously told untruths to the Commission, had been provided with an opportunity to make a statement, in the knowledge that the contents of such statement could, and would, be checked by the Commission.

1. In my view, these were all relevant considerations which supported the conclusion that the requirements of s. 65(2)(b) had been met.

1. Although it was not determinative of the issue that his Honour had to decide for the purposes of s. 65(2)(b), the fact that various aspects of Torrelli's statement were either not put in issue by the applicant, or were independently verified, supported the conclusion that his Honour reached. Torrelli must have been aware, as a result of his appearance before the Commission that his assertions could, and would, be checked. In particular, he must also have been aware of the likelihood that the Commission would approach Maciel (as in fact occurred) to obtain a statement concerning those matters in which Torrelli had implicated him.

1. Although his Honour did not expressly refer to it, Torrelli's awareness that his assertions would be checked was evident from his acknowledgement (in paragraphs (2) and (3) of his statement) that he would be liable to prosecution if he wilfully stated anything which he knew to be false, or did not believe to be true. This court has previously observed that an acknowledgement in those terms is a circumstance capable of supporting the conclusion that his Honour reached in the present case in terms of s. 65(2)(b) (see Harris v R [2005] NSWCCA 432 per Studdert J at [44] - [45], Grove and Whealy JJ agreeing).

1. His Honour was obviously aware that prior to making the statement Torrelli had given evidence on oath to the Commission which, in light of his statement, was at least partially false. That was obviously a relevant consideration, but it was not one which was, of itself, determinative of the issue which his Honour had to decide. Further, and contrary to the submission advanced on behalf of the applicant, there was evidence (in paragraphs [78] and [79] of the statement) of the circumstances in which that statement had come into existence. There was also evidence (in paragraph [81]) of the reasons advanced by Torrelli for giving false evidence to the Commission. They were all matters of which his Honour was obviously aware, and which he took into account.

1. In my view, the fact that the officer who questioned Torrelli at the Commission has, since that time, himself been convicted of serious criminal offences had little or no bearing upon the issue which his Honour was required to determine. In the course of oral submissions, senior counsel for the applicant went some way to acknowledging that this was the case, although he submitted that the fact that the person in question was not available to give evidence about various matters surrounding the circumstances in which the statement was made remained of some relevance. As I have noted, the statement itself set out those circumstances. No further evidence was required in relation to them.

1. For these reasons, I am of the view that it was open to his Honour to find, in accordance with s. 65(2)(b) of the Act, that Torrelli's representations were made in circumstances that made it unlikely that they were a fabrication.

1. Further, in my view, his Honour's conclusions in relation to the provisions of s. 65(2)(d) were similarly open. It is evident from his Honour's judgment that he was mindful of the possibility of Torrelli being motivated, out of self interest, to exaggerate the role of others whilst downplaying his own. However, having considered that issue, his Honour concluded that this, of itself, did not provide reason to reject the statement.

1. His Honour clearly took into account Torrelli's awareness of the fact that his assertions would be checked by the Commission. For the reasons I have previously set out, that was a relevant consideration, and one which supported his Honour's conclusions.

1. The fact that (to use the terminology adopted by senior counsel for the applicant) Torrelli was an "informer" necessarily had a bearing upon the issue of reliability. His honour was clearly aware of that circumstance and, contrary to what was advanced on behalf of the applicant in the written submissions, the application of s. 165 did not mandate the conclusion that Torrelli's representations were unreliable.

1. Finally, having reached his conclusions in respect of ss. 65(2)(b) and (d), his Honour considered the provisions of s. 137. It is clear from his Honour's judgment (at [21] - [22]) that in doing so, he performed the necessary balancing (as to which see R v Blick (2000) 111 A Crim R 326; [2000] NSWCCA 61) and concluded that the evidence was probative, and that the danger of unfair prejudice was unlikely. No error has been established in that regard.

1. For these reasons, Ground 1 has not been made out.

Ground 2 - the sentencing Judge erred in finding that the applicant provided Torrelli with $1,000,000.00 in cash at the Westin Hotel and/or by finding the disputed paragraphs 38-44 of the Agreed Facts proven beyond reasonable doubt.

His Honour's judgment

1. As previously outlined, the applicant disputed Torrelli's assertion that she gave him $1,000,000.00 in cash. In his reasons for sentence (at AB 26-27) his Honour reached the following conclusions concerning this issue:

"Given the material which is before me in relation to the sums of cash available to Mr Moradian, given that the offender's sister, despite having no feelings for Mr Moradian, agreed to help her sister, the offender, by hiding Mr Moradian's cash, given that Mr Torrelli had no reason to exaggerate the amount of cash with which he dealt with (sic), his evidence, supported as it is by others such as Ms Bitzmirza and Mr Maciel, can be accepted.

When the offender gave evidence about these issues she did seek to minimise her knowledge of the amount of cash, which she agrees she took initially to her parents and induced Mr Torrelli to mind on her behalf. She also gave an unconvincing account of the return of cash payments. Her evidence on this matter was simply unbelievable. The offender told me that she did arrange for Mr Torrelli to launder some money and that she did give him $20,000.00 to make an overseas purchase of a watch on behalf of her husband. She did give him a bag of money which she had taken to her parents' place, presumably to hide there. She was at the time so desperate she contemplated risking leaving money with her aged parents. Whilst, as Mr Boulten points out, it is hypothetically possible that Mr Torrelli hid about $1,000,000.00 at the direct instigation of Mr Moradian without the intervention of the offender, this is so unlikely that I discount it. In all the circumstances, the evidence establishes beyond reasonable doubt that in order to assist her husband dispose of large sums of cash, knowing that the New South Wales Police and Crime Commission officers had raided co-offenders and were in closing in on her husband, she chose to assist him by manipulating her friend, Mr Torrelli into assisting her husband, and thereby herself, as part of the marriage partnership. When I consider all the material before me I accept the Crown's submission and what is set out in Mr Torrelli's statement (Exhibit G) and summarised in Exhibit A paras [29] - [44].

These findings support important conclusions:

the offender was actively involved in seeking to hide large sums of her husband's illicit cash from May 2006 to mid 2007;

the offender played a significant role in inducing others' involvement in the hiding of this cash; and

the offender was prepared to engage in numerous cash transactions for her and her husband's individual and mutual benefit."

The submissions of the parties

1. In support of this ground, and in addition to the matters advanced in support of Ground 1, senior counsel for the applicant submitted that there was an inconsistency between the sentencing judge's findings in his judgment concerning the admissibility of Torrelli's representations, and his findings in his reasons for sentence. In this regard he drew attention to the fact that at paragraph [20] of his judgment concerning the question of admissibility, his Honour said:

"Clearly, the statement must be read with an understanding that, reliable or not, there was a clear motivation to down play the extent of his involvement and exaggerate the culpability of others"

1. Senior counsel submitted that this was inconsistent with that part of his Honour's reasons for sentence set out in [64] above where his Honour concluded that Torrelli:

"had no reason to exaggerate the amount of cash with which he dealt...."

1. Secondly, senior counsel submitted that his Honour's conclusions were reached "despite the provisions of s. 165 of the Act", and in the absence of any cross examination of Torrelli.

1. Finally, senior counsel submitted that His honour's conclusions were against the weight of, and unreasonable and unjust in light of, the evidence. In this regard, senior counsel submitted that his Honour failed to give appropriate weight and consideration to the evidence of the applicant.

1. Senior counsel for the Crown relied on the submission made in respect of Ground 1 concerning the applicant's awareness of the fact that his various assertions could, and would, be checked by the Commission. The Crown also relied on the submission made in respect of Ground 1 in relation to the application of s. 165 of the Act.

1. The Crown pointed out that not only was no issue taken by the applicant in relation to a number of aspects of Torrelli's statement, some of Torrelli's assertions concerning the disputed facts were specifically supported by other evidence. In this respect, the Crown pointed to the statement of Maciel, which was admitted in the sentence proceedings without objection, and which supported Torrelli in a number of important respects. All of these matters, the Crown submitted, were available to be taken into account by his Honour in reaching his conclusion.

1. Finally, the Crown submitted that it was clear that his Honour had regard to the applicant's evidence, and had concluded that it was "unconvincing" and "unbelievable". These, the Crown submitted, were findings which were within the province of the sentencing judge, and which were clearly open to him.

Consideration and conclusion

1. His Honour's conclusion that he was satisfied beyond reasonable doubt of the disputed facts was, in my view, one which was clearly open on the evidence and no error in his Honour's reasoning has been demonstrated.

1. Firstly, and properly read, a comparison of his Honour's reasons exhibits no inconsistency. His Honour's observations about Torrelli's motivation, set out in his judgment on the admissibility question, were made in the context of the issue which arose in terms of s. 65(2)(d) of the Act. He concluded that despite the existence of such motivation, he was satisfied that the representations were reliable. A conclusion that the representations were reliable is not inconsistent with a conclusion that Torrelli had no reason to exaggerate the amount of cash with which he dealt.

1. The further submission that error is demonstrated because his Honour was satisfied beyond reasonable doubt of the disputed facts:

(i) despite the provisions of s. 165 of the Act; and

(ii)   in the absence of cross examination of Torrelli

cannot be accepted. Apart from any other consideration, the submission overlooks two important factors.

1. Firstly, to the extent that the submission suggests that the application of s. 165 should have mandated a different conclusion overlooks the terms of s. 165(2). The terms of the warning which his Honour was asked to (and did) give himself, was a warning of possible unreliability, and of the need for caution in determining whether or not the evidence ought be accepted and, if so, what weight would be given to it. The mere fact that the circumstances called for the application of s. 165 did not mean that the evidence was to be automatically rejected.

1. Secondly, the submission fails to have regard to the fact that admission of a representation pursuant to s. 65(2)(b) or (d) will, by its very nature, occur in circumstances where the maker of the representation is not available. There will, as a result, be no cross examination. If the absence of cross examination were a ground for the ultimate rejection of evidence to which s. 65(2)(b) or (d) were held to apply, those provisions would, in large measure, be rendered nugatory.

1. Finally, the submissions advanced on behalf of the applicant that:

(i)   Torrelli's representations were against the weight of the evidence;

(ii)   the result was unreasonable and unjust in light of the whole of the evidence; and

(iii)   the applicant's evidence on oath denying the disputed paragraphs of Torrelli's statement was not given appropriate weight or consideration by the sentencing judge,

should all be rejected.

1. The applicant took no issue at all with the vast majority of Torrelli's assertions, including those parts of his statement which detailed the making of the initial payments, as well as the payment of $910,000.00. Moreover, those matters asserted by Torrelli which were in dispute were supported in a number of material respects by the unchallenged evidence of Maciel. His Honour was entitled to have regard to all of those matters. In these circumstances, and contrary to the submission advanced on behalf of the applicant, the weight of the evidence supported those conclusions.

1. Further, it is evident from his reasons that his Honour gave close consideration to the evidence given by the applicant. Having done so, he concluded that such evidence ought not be accepted. The acceptance or rejection of the evidence given in the sentence proceedings was a matter for his Honour and no error has been demonstrated in that regard.

1. It follows that in my view, this ground is not made out.

Ground 3 - The applicant has a justifiable sense of grievance by virtue of the disparity between the sentence imposed on her and that imposed upon Tanya Youkhana.

The sentences imposed by his Honour on Tanya Youkhana

1. The applicant's sister, Tanya Youkhana, was sentenced by his Honour on 22 February 2011 (R v Tanya Youkhana [2011] NSWDC 63) in respect of two offences, namely:

(i) knowingly dealing with the proceeds of crime contrary to s. 193B(2) of the Crimes Act; and

(ii) conducting transactions to avoid reporting requirement contrary to s. 31(1) of the Financial Transaction Reports Act 1988 ("the FTRA").

1. The first offence involved burying an amount of $2,730,390.00 which she had obtained from Moradian and his associates. In relation to this matter she was sentenced to a non-parole period of 1 year and 6 months imprisonment, to commence on 13 February 2011 and to expire on 12 August 2012 with a parole period of 6 months to date from 13 August 2012 and to expire on 12 February 2013.

1. The second offence involved the making of 38 cash deposits, each between $9,000.00 and $9,900.00, into various bank accounts during the period 22 January 2006 and 7 November 2006. The total amount of those deposits was $347,207.51. In relation to this matter she was sentenced to imprisonment for a period of 1 year to commence on 22 February 2011 and to expire on 21 February 2012. His Honour directed that in relation to that matter she be released forthwith upon entering into a bond pursuant to s. 20(1)(b) of the Crimes Act 1914 (Cth) to be of good behavior for a period of 1 year and to appear for sentence if called upon. As his Honour pointed out (at [56] of his judgment) had the second matter been the only offence before the court, the applicant's sister would have been given a suspended sentence of 1 year.

1. In dealing with this ground, and in light of the submissions made on behalf of the applicant, it should be noted that in his reasons (at AB 20) his Honour said (in relation to the fourth count):

"(The applicant's) offending began when she agreed to commit the offences regarding avoiding of reporting requirements. It is clear that she was aware that the source of the money was illicit. She did so to launder money which was to be used as the deposit for the home she and Mr Moradian intended to buy. She involved her sister in this offence" (emphasis added).

1. Later, and again in reference to the fourth count, his Honour said (at AB 28):

"The offence was relatively unsophisticated. She used her own accounts and I accept she was not, at this stage, aware of how criminal her behaviour was. Nevertheless, the sum involved was a substantial one, $386,172.15. There were forty-one transactions and, as I have said, she involved her sister in this offence" (emphasis added).

1. Importantly, no issue was taken on the hearing of this appeal with his Honour's conclusion that it was the applicant who involved her sister in the offending under the FTRA.

The submissions of the parties

1. Senior counsel for the applicant submitted that the sentencing judge did not provide reasons why, in sentencing the applicant, he had chosen to depart from the sentence which had been imposed upon her sister. He further submitted that in these circumstances, the applicant had a justifiable sense of grievance by virtue of what was said to be the disparity between the sentence imposed upon her and that imposed upon her sister.

1. In support of these submissions, reliance was placed upon the fact that in the applicant's case, the total of the deposits involved in the offence contrary to the FTRA was $386,172.15, arising from 41transactions In comparison, the offence against the FTRA committed by the applicant's sister involved 38 cash deposits totaling a sum of $347,207.51. It was further submitted that the subjective circumstances of the applicant and her sister were not different in any material respect.

1. The Crown submitted that when his Honour's reasons were read as a whole, it was apparent that his Honour did have regard to the sentences which had been imposed upon others who had been charged as a result of the investigation. The Crown submitted that having done so, his Honour had correctly concluded that the applicant's overall offending was different and, importantly, far more extensive.

1. The Crown submitted that when sentencing the applicant his Honour correctly had regard to considerations of totality and that in circumstances where the applicant's offending extended well beyond that of her sister, no justifiable sense of grievance could be made out.

1. The Crown further submitted that even if a comparison of the offending of the applicant and her sister was limited to the offending under the FTRA, the criminality of the applicant was greater, such that she could have no justifiable sense of grievance arising from the respective sentences which were imposed.

Consideration and conclusion

1. The submission that the sentencing judge did not provide reasons for departing from the sentence imposed upon the applicant's sister cannot, in the light of his Honour's reasons, be accepted. In particular, his Honour said (at AB 34-35):

"I have regard to the sentences imposed on others involved in Operation Schoale , particularly those who warehoused or otherwise dealt with the enormous sums of money involved.

Sentences must be individual and the offender's crimes are different than the others. Nevertheless, where possible, a degree of proportionality must be maintained as between those involved in the same criminal enterprise and engaged in similar criminal activity. There can, however, be no direct parity between this offender and others as their crimes were quite distinct from hers.

I must consider each offence separately and also look at the totality of offending. While proper individual sentences must be imposed, the aggregate sentence must also be just and appropriate."

1. That passage makes it clear that his Honour was mindful of the sentences imposed upon those "others" who had been arrested in the course of the investigation (of whom the applicant's sister was one). That passage also makes it clear that his Honour, quite correctly, came to the view that the applicant's offending extended well beyond that of her sister. Quite properly, those considerations played a significant part in his Honour sentencing the applicant as he did.

1. His Honour was obviously aware that the applicant and her sister were each charged with an offence under the FTRA. He was also aware of the fact that in that respect, the nature of their respective offending was similar, and that it arose, in broad terms, from the one set of circumstances. Equally, as his Honour acknowledged, the applicant's offending extended well beyond the commission of the offence contrary to the FTRA. His Honour was, quite properly, mindful of that fact, and thus mindful of considerations of totality of sentence.

1. His Honour also made a number of findings which were favorable to the applicant's sister. In particular, he found:

(i)   that her involvement with Moradian was limited to her commission of the two offences to which she had pleaded guilty, and that she did not actively involve herself in the extended crimes in which others (including the applicant) engaged;

(ii)   that her commission of the offences showed considerable naivety; and

(iii)   that she accepted responsibility for her actions.

1. In comparison, his Honour found (at AB 20; 27-28) that the applicant:

(i) was responsible for involving her sister in the commission of the offence under the FTRA;

(ii)   was actively involved in seeking to hide large sums of Moradian's illicit cash over a period from May 2006 to mid 2007; and

(iii)   played a significant role in inducing the involvement of other persons in the secretion of the cash.

1. None of these findings are challenged. They serve to draw a number of important distinctions between the applicant's offending, and that of her sister, and support the conclusion that the applicant's offending was far more extensive, and her criminality far greater.

1. Finally, even when a comparison between the applicant's offending and that of her sister is limited to the circumstances surrounding the commission of their respective offences against the FTRA, the submission that the applicant has a justifiable sense of grievance cannot be made out. True it is that the number of transactions in each case was comparable, as was the period over which the respective offences were committed. However, in the case of the applicant, the amount of money which was the subject of the charge was almost $40,000.00 in excess of that which applied to the charge laid against her sister. Moreover, as his Honour found, it was the applicant who involved her sister in that offending. Those circumstances, without more, rendered the applicant's criminality greater than that of her sister, thereby justifying the imposition of a harsher sentence.

1. For all of these reasons, this ground is not made out.

ORDERS

1. For the reasons set out above, I propose the following orders:

(i)   leave to appeal granted;

(ii)   appeal dismissed.

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Amendments

30 April 2013 - Incorrect formatting of paragraphs.

Amended paragraphs: 72,73, and 74

Decision last updated: 30 April 2013