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District Court 28 March 2019

R v El Ali

[2019] NSWDC 484

Fraud & dishonestyTheft & property

Citation: R v El Ali [2019] NSWDC 484
Court: District Court of New South Wales
Date: 28 March 2019
Judge: M L Williams SC DCJ

Background

The offender was a 32-year-old man who traded second-hand power tools, selling them on Gumtree and at a market stall at Trash and Treasure markets in Prestons. He kept no records of his transactions and predominantly accepted cash. From at least December 2015, he bought and sold tools without taking adequate steps to verify their legitimacy.

The offender originally faced a more serious charge, but following negotiations, he pleaded guilty to a single count of dealing with property suspected of being proceeds of crime valued at less than $100,000, contrary to s 193C(2) of the Crimes Act 1900. The maximum penalty for that offence is three years imprisonment with no standard non-parole period. A related offence of carrying on a business buying and selling second-hand goods without a licence, contrary to s 7 of the Pawnbrokers and Second-hand Dealers Act 1996, was placed on a Form 1 to be taken into account on sentence.

Of 405 items seized by police, 232 were the subject of the guilty plea. Those items had a retail value of $61,700 at the time of offending, though their second-hand value was considerably lower. All items were returned to their original owners.

  • What weight should be given to the guilty plea, given it resolved a matter that had been set down for trial on a more serious charge?
  • How should the objective seriousness of the offending be assessed?
  • What sentence was appropriate in light of the relevant mitigating factors, the purposes of sentencing, and the need for deterrence?
  • Whether full-time custody was required, or whether a community correction order was sufficient.

Decision

His Honour found that the guilty plea carried significant utilitarian value. The Crown conceded this, recognising that the plea avoided the time and expense of proving multiple instances of conduct that would have supported the more serious original charge. The offender's letter to the court, acknowledging he had not done enough to satisfy himself about the origins of the tools, was accepted as an expression of genuine remorse.

The court identified several mitigating factors: no prior criminal record, the guilty plea, remorse, strong character references provided by people aware of the nature of the charge, and the fact that all property was recovered and returned. The offender had been on strict bail conditions since September 2016 with no evidence of further offending, and had ceased trading in second-hand goods entirely.

Against those mitigating factors, the court weighed the objective seriousness of the offending. His Honour noted that the operation was, in one respect, sophisticated, attended by a deliberate lack of due diligence, and conducted for financial gain over an extended period involving significant value of property. The court also observed that similar matters are ordinarily dealt with in the Local Court, and that this case reached the District Court only because of the more serious charge originally laid.

The Crown did not challenge the submission that full-time custody was unnecessary. However, his Honour held that the purposes of sentencing, including both general and specific deterrence, required the imposition of a formal conviction. A community correction order for 18 months was considered the appropriate response.

Orders Made

  • The offender was convicted of the offence under s 193C(2) of the Crimes Act 1900.
  • The offender was ordered to comply with a community correction order for a period of 18 months commencing 28 March 2019, pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard conditions applied: no further offending; appear before court if called upon.
  • The Form 1 offence (unlicensed second-hand dealer) was taken into account.
  • Confiscation and forfeiture orders were made pursuant to a Short Minute of Consent Order dated 28 March 2019.
  • A further sequence (003) was withdrawn.

Key Takeaways

  • A guilty plea negotiated to resolve a more serious charge may carry substantial utilitarian value, warranting meaningful discount at sentencing, where it saves the court and community the time and expense of proving multiple instances of serious conduct at trial.
  • Under s 193C(2) of the Crimes Act 1900, dealing with property suspected of being proceeds of crime valued under $100,000 carries a maximum of three years imprisonment and no standard non-parole period, placing it among offences ordinarily suitable for Local Court disposition.
  • Where a related licensing offence is placed on a Form 1, the District Court applied the approach confirmed in Attorney General's Application No 1 of 2002 [2002] NSWCCA 518 when taking that matter into account.
  • An absence of prior criminal record, full recovery of stolen property, genuine remorse, and demonstrated rehabilitation since the offending are capable of displacing the need for full-time custody even where the offending was conducted for financial gain over an extended period.
  • The sentencing court treated the need for both general and specific deterrence as sufficient to require a formal conviction, even where no term of imprisonment was imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 8(1)
- Pawnbrokers and Second-hand Dealers Act 1996 (NSW), s 7

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518