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District Court 12 October 2018

R v EL - KHOURI

[2018] NSWDC 455

Fraud & dishonestyTheft & property
CRIME SENTENCE DEALING WITH PROCEEDS OF CRIME SUBJECTIVE MATTERS

Citation: R v EL-KHOURI [2018] NSWDC 455
Court: NSW District Court
Date: 12 October 2018
Judge(s): King SC DCJ

Background

The offender was the sister of a man who ran an organised car rebirthing operation across two properties in the Sydney metropolitan area: her family home in Concord and a dilapidated factory in Alexandria she leased in connection with shared motor trade businesses. Police executing search warrants in July and August 2014 discovered items consistent with a sophisticated and long-running rebirthing operation, along with two stolen vehicles concealed on the premises.

The offender was not alleged to have sourced, stolen, altered, or on-sold any vehicles herself. Her role was confined to providing the two properties to her brother and, through connected motor trade businesses, giving his activities a commercial veneer that may have delayed police detection.

Following a jury trial, she was convicted of facilitating car rebirthing on an organised basis and two counts of dealing with proceeds of crime, relating respectively to a stolen Ferrari and a stolen Holden Commodore SS Group A found in her garage. She was acquitted on a fourth count.

  • What objective seriousness should be assigned to a facilitating role limited to providing premises for car rebirthing, where the offender had no direct involvement in stealing, altering, or selling vehicles?
  • What weight should be given to the jury's finding that the offender knowingly dealt with proceeds of crime, rather than merely recklessly or on suspicion?
  • What aggregate sentence and sentencing modality were appropriate across three related offences, taking into account totality principles and the offender's subjective circumstances?

Decision

King SC DCJ found that the offender's role, though confined to providing premises, was nonetheless a significant step in enabling the operation. The organised motor trade businesses she shared with her brother gave his activities a degree of legitimacy that would otherwise have attracted earlier police attention. The offender was not a disinterested bystander but a person with an active commercial interest in her brother's activities.

On the proceeds of crime counts, the court accepted that the jury's verdicts established actual knowledge, not merely recklessness or suspicion. The Ferrari, parked prominently in the offender's garage with its plates removed only months after being stolen nearby, could not have been missed. The Holden Commodore, though buried under household materials and dust, had plainly been there for a considerable time. Together, the two vehicles supported an inference that the offender's dealing with proceeds of crime was not a one-off event.

The court identified substantial overlap between the three charges and applied totality principles to arrive at an aggregate sentence of two years. Taking into account the offender's subjective circumstances, her suitability for supervision, and her eligibility for community service work, the court determined that the sentence should be served by way of an Intensive Correction Order rather than full-time custody.

Orders Made

  • Conviction recorded on all three counts
  • Indicative sentence of 9 months (Count 3: proceeds of crime, Ferrari)
  • Indicative sentence of 12 months (Count 4: proceeds of crime, Holden Commodore)
  • Indicative sentence of 18 months (Count 1: facilitating car rebirthing on an organised basis)
  • Aggregate sentence of 2 years, commencing 12 October 2018 and expiring 11 October 2020
  • Sentence to be served by way of an Intensive Correction Order
  • Standard conditions imposed, including no further offences and supervision by a Community Corrections Officer
  • 100 hours of community service work required
  • Offender to report to Burwood Community Corrections Office on 15 October 2018

Key Takeaways

  • Liability for facilitating car rebirthing under s 154G of the Crimes Act 1900 does not require direct participation in stealing, altering, or selling vehicles; providing premises in which a step in the activity occurs is sufficient.
  • Where a jury returns a verdict on the principal charge of knowingly dealing with proceeds of crime, rather than a lesser alternative of reckless dealing or dealing with suspected proceeds, the sentencing court treats actual knowledge as established.
  • Commercial involvement in associated businesses, even without hands-on participation in criminal acts, can elevate the objective seriousness of an offender's role where that involvement obscures or legitimises the criminal activity.
  • The District Court applied totality principles to impose an aggregate two-year term across three overlapping offences, reflecting the interrelated nature of the conduct rather than treating each count in isolation.
  • An Intensive Correction Order, including mandatory community service work, remained available for serious property and proceeds-of-crime offences where the offender's subjective circumstances and assessed suitability supported a non-custodial modality.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 154G (facilitating car rebirthing on an organised basis; maximum 14 years, standard non-parole period 4 years)
- Crimes Act 1900 (NSW), s 193B(2) (dealing with proceeds of crime; maximum 15 years)

Cases
- Hemieh (2010) NSWCCA 189
- IBS (1987) 163 CLR 447