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District Court 8 June 2017

R v Shadi Salameh

[2017] NSWDC 138

Fraud & dishonestyTheft & property
KNOWINGLY FACILITATE ORGANISED CAR RE BIRTHING ACTIVITY (TWO OFFENCES) RECKLESSLY DEAL WITH PROCEEDS OF CRIME PARITY IN SENTENCING AGGREGATE SENTENCE

Citation: R v Shadi Salameh [2017] NSWDC 138
Court: District Court of New South Wales
Date: 8 June 2017
Judge: Mahony SC DCJ

Background

The offender was employed as a delivery driver at his family's second-hand vehicle parts business, Milperra Spares, in south-western Sydney. Between January 2014 and February 2016, he participated in two separate organised car re-birthing operations involving stolen Toyota Landcruisers and a Subaru WRX. Car re-birthing involves stripping a stolen vehicle and transferring its body, engine, or other components onto another vehicle chassis, then falsifying identification and registration details to create a fraudulent but saleable vehicle.

The offender faced three charges arising from this conduct: two counts of knowingly facilitating organised car re-birthing activity under s 154G of the Crimes Act 1900 (NSW), and one count of recklessly dealing with the proceeds of crime under s 193B(3) of the same Act. He committed the first re-birthing offence (the "Milperra offence") between January 2014 and September 2015, and then committed the second re-birthing offence (the "Punchbowl offence") while on bail for the first, continuing until February 2016.

Three co-offenders were also charged in relation to the Punchbowl offence. Their sentences were relevant to the parity principle, which requires that sentences for co-offenders be consistent unless there are justifiable differences in their circumstances.

  • What were the appropriate sentences for two counts of knowingly facilitating organised car re-birthing activity and one count of recklessly dealing with proceeds of crime?
  • How should the parity principle be applied given the sentences already imposed on three co-offenders?
  • What utilitarian discount was warranted for the offender's early pleas of guilty?
  • How should an aggregate sentence be constructed, taking into account the principles of proportionality and the avoidance of double punishment?
  • What order should be made on a call-up for breach of an existing s 9 bond (a good behaviour bond)?

Decision

His Honour considered each offence in turn before arriving at an aggregate sentence. The Milperra offence involved three vehicles and a sustained course of conduct that generated significant financial benefit. The Punchbowl offence, committed while on bail, was treated as an aggravating factor. The proceeds of crime charge related to the offender's handling of funds derived from the criminal enterprise.

Parity was a significant consideration. Co-offender Nabulsi had been sentenced to a total of 3 years and 6 months with a non-parole period of 1 year and 9 months. Co-offenders Reddy and Eid each received a total sentence of 2 years and 3 months with a non-parole period of 1 year and 2 months. His Honour assessed the offender as more culpable than those co-offenders, given his central role in the re-birthing operations and the fact that he faced two separate re-birthing charges rather than one.

The offender received a 25% utilitarian discount on sentence for his early pleas of guilty. His Honour applied the principles in Pearce v R on the accumulation of sentences, guarding against double punishment while ensuring that the total sentence reflected the overall criminality of all three offences. The call-up for breach of the existing s 9 bond was resolved without further action being taken.

An aggregate sentence was imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), totalling 6 years with a non-parole period of 3 years and 3 months, commencing from the date of arrest.

Orders Made

  • The offender was convicted of two counts of knowingly facilitating organised car re-birthing activity (s 154G, Crimes Act 1900) and one count of recklessly dealing with proceeds of crime (s 193B(3), Crimes Act 1900).
  • An aggregate sentence of 6 years imprisonment was imposed, comprising a non-parole period of 3 years and 3 months commencing 23 February 2016 and expiring 22 May 2019, followed by a balance of term of 2 years and 9 months expiring 22 February 2022.
  • On the call-up for breach of the s 9 bond, no further action was taken pursuant to s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • The District Court applied the parity principle by comparing the offender's sentence to those of three co-offenders, justifying a higher sentence on the basis of the offender's greater culpability and the additional charges he faced.
  • A 25% utilitarian discount for early pleas of guilty was applied across all three offences, consistent with the established approach to recognising the value of such pleas to the justice system.
  • Where an offender commits further offences while on bail, that conduct constitutes a statutory aggravating factor under NSW sentencing law and weighs against the offender at the sentencing stage.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, an aggregate sentence can be imposed across multiple offences without specifying a separate term for each, provided the court has regard to proportionality and the avoidance of double punishment as required by Pearce v R.
  • Organised car re-birthing offences under s 154G of the Crimes Act 1900 carry a maximum penalty of 14 years imprisonment and a standard non-parole period of 4 years, reflecting the legislature's assessment of the seriousness of this category of offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 154G, 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 53A, 98(2)(a)
- Motor Dealers and Repairers Act 2013 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Pearce v R (1998) 194 CLR 610
- Muldrock v R [2011] HCA 39
- Veen v R (No. 2) (1988) 164 CLR 465
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Gibbons [2013] NSWCCA 166
- R v Hamieh [2010] NSWCCA 189
- R v Tannous [2012] NSWCCA 243
- R v Tuuta [2014] NSWCCA 40
- R v Van Ryn [2016] NSWCCA 1
- R v Di Simone (1981) 147 CLR 383
- Le v R [2017] NSWCCA 26
- Tan v R [2013] NSWCCA
- Cicciarello v R [2009] NSWCCA 272
- Hajazi v R [2009] NSWCCA 282
- Hello v R [2010] NSWCCA 311; R v Hello & Ors [2010] NSWCCA 331
- Isaako v R [2012] NSWCCA 115