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District Court 20 December 2011

R v Natasha YOUKHANA

[2011] NSWDC 205

DrugsFraud & dishonestyPublic order & justice offences
CRIMINAL KNOWINGLY DEAL WITH PROCEEDS OF CRIME OPERATION SCHOALE

Citation: R v Natasha Youkhana [2011] NSWDC 205
Court: District Court of New South Wales
Date: 20 December 2011
Judge(s): Judge Haesler SC

Background

Operation Schoale was a joint NSW Crime Commission and NSW Police investigation into the large-scale importation and supply of cocaine. The offender, the wife of one of the two senior figures in that operation, was charged with four offences arising from her involvement in the financial side of the enterprise and her subsequent conduct before the Crime Commission.

The offender pleaded guilty to: structuring financial transactions to avoid reporting requirements (involving approximately $386,000); giving false evidence before the NSW Crime Commission; performing an act with intent to pervert the course of justice; and knowingly dealing with proceeds of crime totalling approximately $4.6 million. The offending spanned from late 2005 to mid-2007.

The offender had no prior criminal history. She was a university-educated professional from an Assyrian Christian background who, by the court's account, became involved in serious criminal conduct in the context of her relationship with her husband, a senior participant in the cocaine importation scheme.

Legal Issues

  • What weight should be given to guilty pleas that were indicated in the Local Court but were not timely, and where the subsequent factual dispute reduced their utilitarian value?
  • How should parity with other Operation Schoale co-offenders be applied when assessing the sentence discount for the pleas?
  • What was the appropriate overall sentence, having regard to the offender's personal circumstances, the gravity of each offence, the aggravating feature of offending on bail, and the principle of totality?
  • Whether special circumstances existed to justify a variation to the standard ratio between the non-parole period and the balance of term.

Decision

Guilty plea discount: The court determined that a 25 per cent reduction in the otherwise appropriate sentence was warranted, despite the delay in entering the pleas and the protracted factual dispute that reduced their utilitarian value. Judge Haesler SC reasoned that parity and fairness required consistency with discounts extended to other Operation Schoale offenders who had also indicated their pleas in the Local Court. The court drew on authority including Muldrock [2011] HCA 39 for the proposition that no single factor is determinative in the sentencing exercise.

Offender's personal circumstances: The court accepted that the offender had been, prior to this offending, a person of exemplary character with no prior convictions, strong community ties, and genuine family responsibilities. However, the court also found that she was an intelligent and capable person who made deliberate choices to participate in laundering large sums of money, including after she claims to have issued her husband with an ultimatum about his criminal conduct. The court found her capable of manipulative behaviour and did not accept all aspects of her account of her husband's dominance over her.

Aggravating features: The continuation of offending while on bail was identified as a statutory aggravating feature. The court also noted the considerable sums involved, the connection to a major drug importation enterprise, and the serious nature of giving false evidence to the Crime Commission and acting to pervert the course of justice.

Totality and special circumstances: The court imposed a cascading series of fixed terms for three of the four counts, with those sentences running consecutively into the principal sentence for the proceeds of crime offence. A finding of special circumstances was made, resulting in a longer-than-standard balance of term relative to the non-parole period, to assist the offender's rehabilitation and reintegration given the nature of the sentence structure.

Orders Made

  • Count 4 (conduct dealings to avoid reporting requirements, Commonwealth): fixed term of 9 months, commencing 13 December 2011, expiring 12 September 2012.
  • Count 2 (give false evidence at the Crime Commission): fixed term of 9 months, commencing 13 March 2012, expiring 12 December 2012.
  • Count 1 (do an act with intent to pervert the course of justice): fixed term of 9 months, commencing 13 June 2012, expiring 12 March 2013.
  • Count 3 (knowingly deal with proceeds of crime): 3 years and 9 months, comprising a non-parole period of 2 years and 3 months (commencing 13 September 2012, expiring 12 December 2014) and a balance of term of 1 year and 6 months (expiring 12 June 2016).
  • Total effective sentence: 4 years and 6 months, with a non-parole period of 3 years.
  • The section 166 matter (unlawfully obtain goods) was withdrawn and dismissed.

Key Takeaways

  • A 25 per cent guilty plea discount was applied even where pleas were not timely and the factual dispute reduced their utilitarian value, because parity with co-offenders in the same investigation required consistent treatment across Operation Schoale sentencing proceedings.
  • Under Muldrock [2011] HCA 39, no single sentencing factor, including the timeliness or utilitarian value of a guilty plea, is determinative; the court must weigh all relevant matters in the exercise of its discretion.
  • Offending while on bail remained a statutory aggravating factor, taken into account even where the overall sentence was otherwise moderated by strong subjective circumstances.
  • Fixed terms were imposed on three of the four counts specifically because their notional non-parole periods would have been absorbed within the non-parole period of the principal offence, making the fixed-term structure the appropriate mechanism to reflect each offence's separate criminality.
  • A finding of special circumstances justified a departure from the standard non-parole to balance-of-term ratio, allowing a longer period of supervised release to support the offender's rehabilitation following a complex, multi-count sentence.

Legislation and Cases Referenced

Legislation
- Financial Transaction Reports Act 1988 (Cth)
- NSW Crime Commission Act 1995 (NSW)
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)

Cases
- AB [2011] NSWCCA 229
- Thompson (2000) 49 NSWLR 383
- Borkowski (2009) 195 A Crim R 1
- Muldrock [2011] HCA 39
- Moradian [2011] NSWDC 130
- Weininger (2003) 212 CLR 629
- Youkhana [2011] NSWDC 204