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District Court 20 March 2020

R v Ali, Ahmad; R v Elayouby, Elamira-Zahira; R v Moussa, Fouad

[2020] NSWDC 56

Fraud & dishonesty
CRIME MONEY LAUNDERING SUBJECTIVE CONSIDERATIONS ON SENTENCE EXCEPTIONAL HARDSHIP TO THIRD PARTIES PENALTIES FULL

Citation: R v Ali, Ahmad; R v Elayouby, Elamira-Zahira; R v Moussa, Fouad [2020] NSWDC 56
Court: District Court of New South Wales
Date: 20 March 2020
Judge: Yehia SC DCJ

Background

Three offenders pleaded guilty to jointly dealing with money intending it would become an instrument of crime, contrary to ss 11.2A(1) and 400.3(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 25 years imprisonment. The three were part of a larger group that conducted structured cash deposits, each kept below $10,000, across multiple bank accounts at five banks to avoid mandatory reporting requirements under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The total amount laundered across the full operation between December 2016 and October 2017 exceeded $18 million, with the amount particularised in the indictment for the period of these offenders' involvement being approximately $17 million.

The operation centred on a cash safe house and a barbershop in Bankstown. Cash bundles annotated with deposit instructions were brought to the barbershop, and two of the offenders personally attended a locked room containing a currency counting machine. One offender also registered a vehicle and leased a residential property that was repurposed by the enterprise as a cash house. Three co-offenders had already been sentenced in separate proceedings before another District Court judge in December 2019.

The offenders were committed for trial but entered guilty pleas in late November and December 2019, avoiding what the Crown estimated could have been a three-to-six-month trial involving proof of approximately 3,000 transactions.

  • What sentence was appropriate for each offender given their individual role, culpability, and subjective circumstances?
  • What utilitarian discount applied to late guilty pleas that nonetheless avoided a lengthy and complex trial?
  • Whether exceptional hardship to a third party, specifically the young child of one offender who is a single mother, warranted a non-custodial sentence in the form of an Intensive Correction Order (ICO) rather than full-time imprisonment.
  • How to approach the sentencing of each offender consistently with comparable sentences imposed on co-offenders.

Decision

Yehia SC DCJ applied a 20% discount for the utilitarian value of the guilty pleas entered by two of the offenders, and a combined discount of 30% for the third offender, who received additional credit for a separate matter. Although the pleas were not entered at the earliest opportunity, the court was satisfied they reflected genuine remorse and a willingness to facilitate justice, given the Crown would otherwise have had to prove thousands of individual transactions.

The court found that the offending was objectively serious. Large sums of cash were handled through a coordinated and deliberately structured scheme designed to circumvent anti-money laundering reporting laws. However, the court assessed each offender's culpability individually. One offender was found to have occupied a more senior role, having been involved in coordinating the operation from the barbershop. Another was found to have participated extensively by making 325 deposits totalling over $1.5 million, but the agreed facts acknowledged she was responsive to the directions of others, was unaware of the total scale of the operation, and came to the enterprise following a history of abuse, deprivation, and poverty. The court described her as a completely honest witness whose evidence on occasion was adverse to her own interests.

For the female offender, the court gave significant weight to the exceptional hardship that full-time imprisonment would impose on her young child. Evidence established on the balance of probabilities that no suitable placement with family or friends existed for the child. The court concluded this warranted a sentence of imprisonment served by way of an Intensive Correction Order rather than full-time custody, and imposed additional conditions including ongoing counselling. The two male offenders received full-time custodial sentences.

Orders Made

Fouad Moussa: Convicted. Sentenced to imprisonment with a non-parole period of 1 year 9 months (commencing 20 March 2020, expiring 19 December 2021) and a balance of term of 1 year 10 months; total term 3 years 7 months. Combined discount of 30% applied. Recommendation for referral to a psychiatrist and mental health nurse for OCD, depression, and anxiety.

Ahmad Ali: Convicted. Sentenced to imprisonment with a non-parole period of 1 year 6 months (commencing 20 March 2020, expiring 19 September 2021) and a balance of term of 1 year 10 months; total term 3 years 4 months. Discount of 20% applied. Recommendation for referral to a psychiatrist and mental health nurse for panic disorder, depression, and anxiety.

Elamira-Zahira Elayouby: Convicted. Sentenced to 2 years imprisonment to be served by way of an Intensive Correction Order commencing 20 March 2020. Discount of 20% applied. Standard conditions applied (no offending; supervision by Community Corrections). Additional condition: ongoing regular counselling with a nominated practitioner or suitably qualified delegate. Required to report to Community Corrections at Bankstown within seven days.

Key Takeaways

  • A 20% utilitarian discount for guilty pleas was appropriate even where pleas were not entered at the first available opportunity, where the trials would have been exceptionally lengthy and complex, and where the pleas were also taken to reflect genuine remorse.

  • Exceptional hardship to a third party, specifically the dependent child of a sole carer, can justify an Intensive Correction Order in lieu of full-time imprisonment. The District Court required that the absence of any suitable alternative placement for the child be established on the balance of probabilities.

  • Individual culpability within a joint money laundering enterprise must be assessed separately. The court distinguished between offenders who coordinated or directed the operation and those who participated under the direction of others, particularly where personal history, coercion, or limited awareness of the full scale of the scheme was established.

  • Structured transactions designed to keep individual cash deposits below reporting thresholds represent a serious form of money laundering, with the court treating the deliberate and systematic circumvention of anti-money laundering laws as a significant aggravating feature.

  • Where co-offenders have already been sentenced in related proceedings, consistency in sentencing remains a relevant consideration, though individual differences in role, culpability, and subjective circumstances may justify meaningful departures from earlier sentences imposed.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.2A(1) and 400.3(1)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
- Crimes Act 1914 (Cth), Part 1B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 66 and s 7(1)

Cases:
- R v Huang; R v Siu (2007) 174 A Crim R 370
- Bugmy v The Queen (2013) 249 CLR 571
- Kremisis v R [2016] NSWCCA 257
- Carter v R [2018] NSWCCA 138
- R v MacLeod [2013] NSWCCA 108
- R v Zarafa (2013) 235 A Crim R 265
- R v Pogson [2012] NSWCCA 225
- Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41
- R v Pullen [2018] NSWCCA 264
- R v Fangaloka [2019] NSWCCA 173
- Casella v R [2019] NSWCCA 201
- Markarian v The Queen (2005) 228 CLR 357