R v Saeed [2023] NSWDC 20

District Court New South Wales

Medium Neutral Citation: R v Saeed [2023] NSWDC 20 Hearing dates: 31 January 2023, 9 February 2023 Date of orders: 9 February 2023 Decision date: 09 February 2023 Jurisdiction: Criminal Before: Wass SC DCJ Decision: (1) The Crown's detention application fails. (2) Bail to continue. Catchwords: CRIME — Bail — Crown Detention Application Legislation Cited: Bail Act 2013 (NSW) s 22B(1)(b) Cases Cited: DPP (NSW) v Van Gestal [2022] NSWCCA 171 at [44] Category: Principal judgment Parties: Department of Public Prosecutions (Applicant) Saeed (Respondent) Representation: Solicitor Advocates: Ms Bombell (Applicant) Ms Zbib (Respondent) File Number(s): DC 2020/00188125 Publication restriction: NIL

JUDGMENT

Detention Application 1. The Crown makes its detention application in circumstances where the offender has pleaded guilty and faces sentence before Judge Mark Williams SC in respect of 5 counts of knowingly dealing with a little over $1,000,000, being the proceeds of crime. 2. The offender will also have taken into account 6 further counts on a Form 1 in respect of about $393,000. 3. I delivered this judgment during the course of an ongoing trial, and accordingly my reasons will necessarily be brief.

Parity 1. The Court has already sentenced a number of other participants who face some of the same but also different but similar charges. Two offenders, Ifeanyi NZERIBE and Prince OGBEIDE, received full time custodial sentences. Another five; Youssuf IBRAHIM, Said JAFARI, Maxwell KYERE, Khanna MIKHAEL, and Dennis OCHAYA, did not. 2. On a question of parity, the offender's forecasted sentence depends at least in part on where he sits in any notional hierarchy, to the extent that there is one. 3. The amount involved is a relevant feature to consider on sentence, but it is not determinative. It is similarly relevant on any bail determination. 4. The Crown submits, in short, that given the terms of imprisonment set in respect of Mr NZERIBE and Mr OGBEIDE, a term of full-time imprisonment in respect of the offender is "realistically inevitable", [1] having regard to the objective seriousness of the offences, the need for general deterrence, and the maximum penalties; counts 3, 5, 6, 8 and 9 carry 20 years, counts 2, 4, 7, and 10, 15 years, count 1, 5 years and count 11, 3 years. 5. Mr NZERIBE received a 45% combined discount. Mr OGBEIDE received a 35% combined discount. The offender will receive a 10% discount, having pleaded guilty just prior to trial. 6. Although it is a critical part of any sentencing exercise, the Crown provided almost no information of the subjective circumstances of Mr NZERIBE and Mr OGBEIDE. This included knowing only that Mr OGBEIDE had committed three previous offences of dealing with proceeds of a similar kind, and where he committed his latest offences in breach of a Community Corrections Order, increasing the need for specific deterrence in his case. This was a matter not revealed in the Crown's "co-offender table", [2] but which was known to the Crown and revealed only on questioning from the Bench. Despite asking, I received no answer to why this information was not in the table. 7. There was much more information, including not only as to the various subjective cases, but the statements of facts upon which the other participants were sentenced, and their criminal records, that could easily have been included. Apart from demonstrating a lack of candour, such information is necessary in making an accurate forecast as to the offender's sentence thus increasing the likelihood of any finding of the inevitability of full-time imprisonment. Indeed, that kind of information in my view is critical to acceding to any detention application, when parity is an issue and where a term of full-time imprisonment is not otherwise a foregone conclusion, or to use the words read into section 22B(1)(b) of the Bail Act 2013 (NSW), "realistically inevitable". [3] Any remarks of the sentencing Judge might also have been of assistance, although I appreciate that the formal remarks on sentence are not always available. 8. In short, in any argument on parity, a table that provides only the offences and the overall penalty provides almost no assistance. 9. The Crown accepts that Mr NZERIBE is above the offender in the hierarchy. That is obvious given that his offending involved amounts almost double that of the offender and where Mr NZERIBE is clearly an organiser and did not subject himself to the risky tasks carried out by the offender. 10. Mr NZERIBE was sentenced in relation to 10 offences (and an additional 14 matters on a Form 1) to a total aggregate sentence of 5 years and 4 months imprisonment. There is some overlap in the charges for counts, 8, 9, 5 and 3, for which he was sentenced to 19, 18, 31 and 18 months respectively, including another matter not faced by the offender where the indicative term was 30 months. Nothing is known of Mr NZERIBE's conduct in respect of the other offences. 11. Mr OGBEIDE was sentenced to an aggregate term of 3 years and 10 months imprisonment in respect of 6 offences (and an additional 5 matters on a Form 1) again with little other information being provided. 12. I have also read the offender's statement of facts in assessing the objective seriousness of his offending to form a view about whether or not the offender's sentence requires a full-time term of imprisonment, separate from any consideration of parity.