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District Court 26 October 2017

R v HAGALI, Rabbeh

[2017] NSWDC 379

Fraud & dishonesty
CRIMINAL SENTENCE DEAL WITH THE PROCEEDS OF CRIME $200,000 BANK CHEQUE FORM 1 MATTER TO BE CONSIDERED $500,000

Citation: R v Hagali, Rabbeh [2017] NSWDC 379
Court: District Court of New South Wales
Date: 26 October 2017
Judge: Judge S Norrish QC

Background

The offender was sentenced for knowingly dealing with the proceeds of crime, specifically a $200,000 bank cheque, contrary to s 193B(2) of the Crimes Act 1900 (NSW). The offence arose from an elaborate fraud in which over $1.5 million in government bond proceeds belonging to a South African investor were redirected into a fraudulently opened bank account. The offender played a central directing role, instructing others to open the account using false identity documents and to obtain the bank cheque from those funds.

A further matter was listed on a Form 1 to be taken into account at sentencing: an attempted dealing with $500,000 in proceeds of crime, committed approximately 11 days after the primary offence. Two co-accused, Charles Maxwell and Viviane Daher, had already been sentenced in the Local Court in connection with the same scheme.

Before sentencing, the offender raised a disputed facts application, contesting a particular factual assertion in the Crown's statement of facts. Judge Norrish heard evidence from Maxwell and the offender's sister, but the offender himself did not give evidence. The court noted that the absence of evidence from the offender on the disputed issue was a significant matter in the sentencing process.

  • What sentence was appropriate for knowingly dealing with the proceeds of crime, carrying a maximum of 15 years imprisonment?
  • How should the Form 1 matter (the attempted $500,000 dealing) affect the sentence?
  • What effect did the offender's unsuccessful disputed facts application have on the guilty plea discount?
  • How should parity be maintained with sentences already imposed on the two co-accused?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default.

Decision

Disputed facts: The court found that the offender's failure to give evidence on the disputed factual matter was a fundamental problem. Counsel's written and oral submissions from the bar table do not constitute evidence. Because the offender did not testify, the disputed issue could not be resolved in his favour, and this was reflected in the sentencing outcome.

Plea discount: The offender received a discount for his guilty plea, but it was reduced slightly because of the unsuccessful disputed facts application. The court treated the resources expended on that hearing as a relevant consideration when calibrating the discount.

Form 1 matter: Applying the guideline in Attorney General's Application No 1 of 2002, the court noted that Form 1 matters may justify a longer or qualitatively different sentence than the principal offence would attract alone. The court rejected any suggestion that the additional weight given to the Form 1 should automatically be small, while remaining constrained by the maximum penalty for the principal offence.

Parity: Although strict parity did not apply (because the co-accused were sentenced in the Local Court, which has a lower jurisdictional maximum), the sentences imposed on Maxwell and Daher remained relevant as a constraint. The court took those outcomes into account alongside the offender's more significant directing role. Special circumstances were found, given that the offender had no prior experience of custody, which warranted a longer than usual period on parole to assist his reintegration into the community.

Orders Made

  • Principal sentence of three years and ten months imprisonment, commencing 26 October 2017.
  • Non-parole period of two years and four months.
  • Earliest eligible release date: 25 February 2020 (subject to the Parole Authority).
  • Victim support levy and a compensation order were also made (precise amount not fully reproduced in the provided text).

Key Takeaways

  • The District Court confirmed that an offender who raises a disputed facts application but fails to give evidence on the disputed issue cannot expect the dispute to be resolved in their favour, and this may reduce the guilty plea discount.
  • A small reduction in the standard guilty plea discount is an available tool where the offender's conduct of a disputed facts hearing has consumed court resources without success.
  • Under the Attorney General's Application No 1 of 2002 guideline, Form 1 matters can justify a materially longer sentence; the court is not required to treat their effect as minimal, though it remains bound by the principal offence's maximum penalty.
  • Parity principles applied with some flexibility here: because the co-accused were sentenced in the Local Court's summary jurisdiction (which carries a lower maximum), strict parity did not bind the District Court, though those sentences still operated as a practical constraint.
  • Special circumstances were established on the basis that the offender had never previously served a custodial sentence, justifying a proportionally longer parole period to support his adjustment to community living after release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 193B(2) (dealing with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 97
- Victims Rights and Support Act 2013 (NSW)

Cases:
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147 (guideline judgment on Form 1 matters)
- R v AB [2011] NSWCCA 229
- R v De Simoni (1981) 147 CLR 383
- R v Thompson and Houlton [2000] NSWCCA 309 (guilty plea discounts)