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District Court 8 October 2021

R v Mercer

[2021] NSWDC 784

Fraud & dishonestyTheft & property
CRIME SENTENCE CAR REBIRTHING SPRAY PAINTING INTENSIVE CORRECTION ORDER

Citation: R v Mercer [2021] NSWDC 784
Court: District Court of NSW
Date: 8 October 2021
Judge: Sutherland SC DCJ

Background

Sean Mercer, a licensed spray painter, was sentenced after pleading guilty to one charge of knowingly facilitating organised car rebirthing activity under s 154G of the Crimes Act 1900 (NSW). Car rebirthing involves disguising stolen vehicles by altering their appearance and identification to make them appear legitimate. The offence carries a maximum penalty of 14 years imprisonment and a standard non-parole period of four years.

The offending arose from the theft of four Toyota LandCruisers from a Yennora manufacturing facility in April 2020. The vehicles, valued at just under $300,000, were being fitted out for use by the Rural Fire Service and were identifiable by a distinctive bright orange band painted on the lower half of each cabin. The operation was led principally by two brothers, Omar and Habib Alameddine.

Mercer did not take part in the thefts. Rather, he operated a spray painting business out of shared commercial premises at Seven Hills, and on the day of the thefts he was contacted by Omar Alameddine and asked to repaint the stolen vehicles. Over the following days, Mercer spray painted the cabins entirely white. CCTV footage and intercepted telephone calls captured his involvement, including his presence when others were observed tampering with vehicle identification numbers, and his passing of a die grinder to another participant.

  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, requiring the court to consider alternatives to full-time imprisonment
  • The appropriate head sentence before applying any guilty plea discount
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody

Decision

Sutherland SC DCJ found that the s 5 threshold had been crossed: the nature and circumstances of the offending required a sentence of imprisonment, but a non-custodial alternative could not be ruled out. His Honour set a starting point of two years and eight months imprisonment before applying the guilty plea discount.

A 25% discount was applied for the early guilty plea, reducing the sentence to two years imprisonment. His Honour then considered whether an ICO was appropriate. A pre-sentence report assessed Mercer as a low risk of reoffending (rated T2) and as suitable to undertake 21 hours of community service work per month.

His Honour acknowledged the complication posed by COVID-19 public health restrictions, which had suspended community service work at the Parramatta Community Corrections office. However, the court noted that Mercer intended to relocate to the lower south coast region, where conditions differed from the Parramatta hotspot, and concluded an ICO remained workable.

Orders Made

  • Mercer convicted of knowingly facilitating organised car rebirthing activity
  • Sentenced to two years imprisonment, to be served by way of an Intensive Correction Order commencing 8 October 2021
  • Standard ICO conditions imposed: no commission of any offence; submission to supervision by a Community Corrections officer
  • Additional condition: 200 hours of community service work
  • Mercer required to report to the Parramatta Community Corrections office within seven days

Key Takeaways

  • Under s 154G of the Crimes Act 1900 (NSW), a person who knowingly facilitates organised car rebirthing activity faces a maximum of 14 years imprisonment and a standard non-parole period of four years, even where they played no part in the underlying theft.
  • A conviction for facilitating car rebirthing does not require direct involvement in stealing the vehicles; presence during associated criminal activity (such as VIN tampering) and active assistance with disguising stolen property is sufficient to ground the offence.
  • The District Court applied a 25% guilty plea discount to reduce the head sentence from two years and eight months to two years, consistent with the requirements of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • An Intensive Correction Order remained available even where community service delivery was temporarily disrupted by COVID-19 restrictions, provided the court was satisfied the conditions could be met in practice.
  • Pandemic-related operational limitations at a specific Community Corrections office did not, of themselves, preclude an ICO where the offender's circumstances suggested supervision in a less-affected area was feasible.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 154G
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5, s 7(1)

Cases:
- R v Eid [2017] NSWDC 76
- R v El Khoury [2018] NSWDC 455
- R v Obeid [2019] NSWDC 204
- R v Pogson and Lapham [2012] NSWCCA 225
- R v Salome [2017] NSWDC 138
- R v Tannous, Fahda and Dib [2012] NSWCCA 243