Citation: Regina (CTH) v Nahi Nasri Gazal [2017] NSWDC 65
Court: District Court of New South Wales
Date: 24 March 2017
Judge: Judge AC Scotting
Background
The offender was the Chief Executive Officer of a telecommunications company. In March 2011, he and a co-offender collected a cardboard box from a money remitter in Pendle Hill containing between $504,000 and $800,000 in cash. Over the following weeks, he deposited approximately $405,000 of that cash into company bank accounts and directed his co-offender to deposit a further $79,100, before transferring $350,000 overseas to accounts nominated by a contact known as Muhammad.
The offender pleaded guilty to one count of dealing with money reasonably suspected of being proceeds of crime under section 400.9(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is three years imprisonment and/or a fine of $32,400.
At sentence, the offender sought to establish several mitigating facts on the balance of probabilities. These included that he believed he was receiving a legitimate loan for business purposes, that he received threats against himself and his family when the cash fell short of the agreed amount, and that he repaid the shortfall from his own and family funds. The Crown contested a number of these claims, requiring the Court to resolve the disputed factual matters before sentencing.
Legal Issues
- Whether the offender had established the mitigating facts he asserted on the balance of probabilities, and what weight should be given to them
- The objective seriousness of the offence and where it sat within the range of conduct captured by section 400.9(1)
- What discount, if any, was appropriate for the guilty plea
- Whether an Intensive Corrections Order (ICO) was an appropriate sentencing disposition, or whether full-time imprisonment was required
- How the parity principle applied given the sentence imposed on the co-offender, Mr Georges
- Whether delay in bringing the charge warranted mitigation
Decision
The Court worked through the contested mitigating facts and accepted some elements of the offender's account while remaining sceptical of others. The nature of the transaction, the coded exchanges with Muhammad, and the offender's conduct in the lead-up to collecting the cash made it difficult to accept fully that he believed he was participating in an ordinary commercial loan. However, the Court did take into account the threats made against the offender and his son, and the fact that he had deposited significant personal and family funds to address the shortfall.
On objective seriousness, the Court found the offending sat in the mid-range. The offender dealt with a substantial sum, used corporate bank accounts to layer the funds, and transferred $350,000 overseas. These factors elevated the seriousness of the conduct beyond a simple one-off dealing.
The Court rejected the submission that an ICO was a sufficient penalty. Citing R v Pogson and R v Cahill, the Court acknowledged that an ICO constitutes a form of imprisonment, but held that it was not a punishment of appropriate severity given all the circumstances. The Court also considered the co-offender Mr Georges' sentence (released on a recognisance release order after serving six months) and accepted the offender's submission that the parity principle could not be used by the Crown to push for a harsher sentence, noting that Mr Georges acted under direction and had no dealings with those higher in the chain.
A discount of 5% was applied for the guilty plea, reducing the base term of 20 months to 19 months. The Court also took into account the approximately 18-month delay between the offending and the offender's arrest in August 2012.
Orders Made
- The offender was convicted of one count of dealing with money reasonably suspected of being proceeds of crime contrary to section 400.9(1) of the Criminal Code Act 1995 (Cth)
- A term of imprisonment of 19 months was imposed, commencing 24 March 2017
- The offender was to be released on a recognisance to be of good behaviour on 23 January 2018, having served 10 months of the term
- The recognisance was for a period of 9 months in the sum of $500
Key Takeaways
- An Intensive Corrections Order, while technically a form of imprisonment, was found to lack the punitive weight required for mid-range proceeds of crime offending involving large sums and international transfers.
- The District Court confirmed that a defendant seeking to rely on mitigating facts at sentence bears the burden of establishing those facts on the balance of probabilities.
- Where a co-offender acted under the principal's direction, had no dealings with those higher up the chain, and did not transfer funds overseas, a sentencing disparity between the two is capable of justification and does not necessarily engage the parity principle in the principal's favour.
- Delay between the commission of an offence and arrest is a recognised mitigating consideration in sentencing.
- Under section 400.9(1) of the Criminal Code Act 1995 (Cth), the objective seriousness of the offending is informed by the quantum of funds dealt with, the sophistication of the layering conduct, and the extent of any overseas transfers.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 400.9(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 20AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(k)
Cases
- Palijan v R [2010] NSWCCA 142
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91
- R v Olbrich (1999) 199 CLR 270
- Shi v R [2014] NSWCCA 275
- R v El Karhani (1990) 21 NSWLR 370
- Johnson v The Queen (2004) 78 ALJR 616
- R v Ly [2014] NSWCCA 78
- Muldrock v R (2011) 244 CLR 120
- Cameron v The Queen (2002) 209 CLR 330
- Danial v R [2008] NSWCCA 15
- Lee v R [2012] NSWCCA 123
- Markarian v The Queen (2005) 228 CLR 357
- R v Pogson (2012) 82 NSWLR 60
- R v Cahill [2015] NSWCCA 53