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District Court 4 August 2017

R v ALFAR, Attallah

[2017] NSWDC 280

Fraud & dishonestyTheft & property
CRIMINAL SENTENCE CONSPIRACY TO COMMIT OFFENCE CAR RE BIRTHING ADDITIONAL MATTERS ON THE FORM 1

Citation: R v ALFAR, Attallah [2017] NSWDC 280
Court: District Court of New South Wales
Date: 4 August 2017
Judge: Judge S Norrish QC

Background

The offender, a man aged 58 at sentencing, pleaded guilty to a common law conspiracy to dispose of stolen property. The offending spanned from November 2001 to August 2002 and involved a large-scale organised car theft and rebirthing operation run principally by the offender and members of his family in Sydney. Stolen vehicles were dismantled, given false identities using altered chassis and engine numbers, and shipped to Jordan and Lebanon.

The operation was sophisticated. It involved the theft of motor vehicles, the purchase of write-off wrecks at auction, the cutting and transferring of identification points, the issuance of fraudulent roadworthiness certificates, and the use of a smash repairs business as a front. A further matter, a conspiracy to cheat and defraud insurance companies, was taken into account on a Form 1 (a procedural mechanism allowing related charges to be considered at sentencing without a separate conviction).

The offender had left Australia for Jordan in June 2002, shortly before investigations culminated in the arrest of his wife, sons and other co-conspirators. He was arrested in Jordan in January 2003, prosecuted there in circumstances that remained unclear to the Court, and did not return to Australia until around 2012 or 2013. He was arrested in Australia in June 2013 and, notably, initially denied his own identity to police. He was not committed to the District Court for trial until 2015 and ultimately pleaded guilty in August 2016.

  • What was the appropriate starting sentence for a serious, large-scale property conspiracy given the offender's leading role?
  • How should the court treat the extensive delay of approximately 15 years between offending and sentencing, and to what extent was any part of that delay attributable to the offender?
  • How should the court account for time the offender may have spent in custody in Jordan, given the unreliable evidence about those proceedings?
  • How should the principles of parity apply given that co-offenders had already been sentenced and had served their terms?
  • What weight should be given to the offender's significantly deteriorating health, his age, and his guilty plea?

Decision

Judge Norrish identified the offender as a principal figure in the criminal enterprise, with a leadership role that distinguished him from other co-offenders. The 41-page agreed facts were the most detailed placed before any of the sentencing judges in the related proceedings. The maximum penalty for the principal offence was "at large" as a common law conspiracy, and the Court accepted that the conspiracy to cheat and defraud, while also serious, was considerably less grave than the principal offending.

The Court fixed a starting point of seven years imprisonment but reduced this substantially. Delay was a central mitigating factor: approximately 15 years had elapsed between the offending and sentencing. While the Court noted the offender bore some responsibility for the delay through his prolonged absence from Australia and his attempt to conceal his identity on return, the delay nonetheless had real mitigating force. His health had deteriorated markedly in the intervening years, with significant heart disease and type 2 diabetes, and he was considerably older and more vulnerable than when the offences were committed.

Parity with co-offenders was a significant constraint. The Court examined the sentences imposed on the other conspirators in detail and was required to ensure the offender's sentence was not so disparate as to give rise to a justifiable sense of grievance, even accounting for his more senior role. The offender's guilty plea attracted a utilitarian discount, acknowledging the practical benefit to the justice system.

The Court found special circumstances warranting an adjustment to the standard ratio between the non-parole period and the balance of the sentence (ordinarily, the non-parole period must be at least three-quarters of the total sentence under New South Wales law). This reflected the offender's health needs and the circumstances of his likely release. The Court recommended that Justice Health assess the offender as quickly as possible following his entry into custody.

Orders Made

  • Total sentence of 5 years and 11 months imprisonment (with a starting point of 7 years, reduced for mitigating factors).
  • Non-parole period of 3 years, commencing 4 August 2017 and expiring 3 August 2020.
  • Balance of sentence of 2 years and 11 months, expiring 3 July 2023.
  • Recommendation that Corrective Services refer the offender promptly to Justice Health for medical assessment, given his history of heart disease and type 2 diabetes.

Key Takeaways

  • Substantial delay between offending and sentencing, even where partly attributable to an offender's own conduct, can operate as a meaningful mitigating factor, particularly where health has deteriorated and co-offenders have long since completed their sentences.
  • The District Court treated the offender's attempt to conceal his identity on return to Australia as relevant to understanding the reasons for his prolonged absence, though this did not eliminate delay as a mitigating consideration.
  • Parity principles required the Court to examine co-offenders' sentences with care, even where the offender held a more senior role in the criminal enterprise. A sentence substantially exceeding those of co-offenders requires justification proportionate to the difference in culpability.
  • Where reliable evidence of foreign imprisonment is unavailable, a sentencing court cannot give credit for time allegedly served overseas. The Court declined to make assumptions about the Jordanian proceedings given the unsatisfactory state of the evidence.
  • Special circumstances can justify a longer-than-standard parole period, particularly where an offender with serious health conditions will require structured support and monitoring on release.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Giourtalis v R [2013] NSWCCA 216
- Jimmy v R [2010] NSWCCA 60
- King (NSWCCA, 24 February 1998, unreported)
- Mill v The Queen (1988) 166 CLR 59
- R v Blanco [1999] NSWCCA 121
- R v Pickard [2011] SASCFC 134
- R v Schwabegger (1998) 4 VR 649
- R v Todd (1982) 2 NSWLR 517
- Regina v Gay [2002] NSWCCA 6
- Sabra v R [2015] NSWCCA 38
- Savvas (No 2) v The Queen (1991) 58 A Crim R 175
- Tyler v Chalmers [2007] NSWCCA 247
- Veen (No 2) v The Queen (1988) 164 CLR 465