District Court New South Wales Medium Neutral Citation: R v Ninos GEORGES [2011] NSWDC 61 Hearing dates: 8 April 2011 Decision date: 08 April 2011 Jurisdiction: Criminal Before: Haesler DCJ SC Decision: Count 1 - Proceeds of crime offence and Form 1. Section 12 suspended sentence 12 months. Catchwords: CRIMINAL - Proceeds of crime - Possess prohibited drug - Possess prescribed restricted substance - Operation Schoale Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Thomson and Houlton (2000) 49 NSWLR 383 R v Peisley [2010] NSWDC 240 R v Saliba [2010] NSWDC 277 R v Tanya Youkhana [2011] NSWDC 63 Category: Sentence Parties: Regina Ninos Georges Representation: Mr F Santisi (Offender) Ms F Gray (Director of Public Prosecutions) File Number(s): 2008/256487 SENTENCE 1On 28 February 2007 police executed a search warrant at the flat of Ninos Georges, the offender, in Bondi Junction. There they located $255,250 in Australian currency in a number of areas in the premises set out in the photographs and noted in the Agreed Facts that are before the Court. 2Also found was a money-counting machine, a number of mobile phones, two boxes of the human growth hormone known as Scitropin, two boxes of another human growth hormone known as Saizen and a small quantity of cannabis. 3Subsequent investigations led to the Director of Public Prosecutions accepting that $55,000 of the cash found should not be the subject of the present charge. 4This matter has a long history. Since the date of arrest the offender has been on bail and there have been lengthy criminal proceedings involving a large number of people associated with a Crime Commission and New South Wales Police Force operation which was given the code name Operation Schoale. As a result of this operation a number of people have been charged in relation to the importation of a commercial quantity of cocaine, the supply of large amounts of cocaine and their involvement with others in the holding and disposal of significant sums of cash. 5The present offender's association with the matters that gave rise to Operation Schoale is that he is an associate of a man by the name of Luke Sparos and his wife Christine Saliba. The offender resided in the same apartment complex as those people and, for a period, his rent was paid by Ms Saliba. 6The investigations and subsequent court appearances of the people associated with Operation Schoale took some considerable time. It is accepted by the solicitor for the Director of Public Prosecutions that this particular offender was not a major player and, as a consequence, his matter did not get the same priority as others. It is also accepted that while initially there were problems in coming to agreement between those then representing the offender and those then appearing for the Director, subsequently a spirit of co-operation developed that led to a fresh indictment being presented in January of this year. A plea of guilty was accepted. That plea was clearly late. Authorities such as R v Thomson and Houlton (2000) 49 NSWLR 383 indicate that timing is the most significant factor in assessing the utilitarian value of a plea of guilty. It is accepted however that, here, simple fairness and a recognition of the willingness of this offender to facilitate the course of justice means that a reduction in the sentence otherwise appropriate of twenty-five per cent is, in the particular circumstances of this case, justified. I intend to make such a reduction. 7The offence to which the offender has pleaded guilty involves dealing with the proceeds of crime, namely $200,250 in Australian currency, being reckless as to whether it was the proceeds of crime. It would appear from the material before me that the Crown assessment of the objective seriousness of this offence is an accurate and appropriate one. I quote from the Crown's submissions: "The offender was in possession of a large amount of cash. That cash was in fifty and one hundred dollar denominations. The offender was in possession of a money-counting machine. The money was packaged in rubber bands in counted amounts. The money was secreted away in shoe boxes. The offender's role was that of a warehouser for money. The money was not his. The offender lived in the same apartment building as the co-accused and Ms Saliba paid the offender's rent of $450 per week. The overwhelming inference is the offender was warehousing the money on behalf of Luke Sparos". 8I also agree with the summary of the solicitor for the Director of Public Prosecutions of the rationale for provisions such as 193B of the Crimes Act 1900: "Such provisions are aimed at conduct involving dealing with the proceeds of crime by those not only involved with the commission of the original offences but also associates who assist in the dealing with such funds to evade detection. Those willing to assist in dealing with such funds, whether by actual use or through warehousing, are also assisting others in avoiding detection for the original crimes. It is analogous to the role a receiver plays in respect of a break and enter and steal offence. It further enables those who have committed offences to protect the assets derived from the offences through storing funds at premises which do not appear to be connected with them". 9Offences such as this, sometimes involving immense sums, are of real concern to the community. They cause substantial harm, both economic and otherwise. While this offence falls towards the bottom of the range of the type of matters covered by that part of the Crimes Act 1900 concerning dealing in the proceeds of crime it is still a particularly serious offence. The seriousness of this matter is reflected in the maximum penalty provided of ten years. While "recklessness" is generally regarded as a less serious aspect of the crime than those committed by people who know the source of the funds dealt with, it is still a matter that would require, in many cases, custodial penalties to be imposed. 10I also note that cannabis and vials of human growth hormone were found during the execution of the search warrant. I have been asked to take those matters into account on a Form 1 and I intend to do so. My focus throughout must be, however, on the principal offence. I note that these matters could have been dealt with in the Local Court and they are unrelated to the crime that is before me. They do have some relevance to the subjective history provided. I note that, given the background of this offender, it is unlikely that custodial sentences would have been imposed and that the cannabis matter is not generally regarded, given the amounts involved, as one of particular seriousness. However, the use and possession of human growth hormones is a serious offence and the offender and the community must know that possession of such substances can cause considerable detriment both to individuals such as the present offender and others who may be tempted to use it. 11I have also had regard in this matter to sentences that I have imposed on others involved in Operation Schoale : the matters of Peisley [2010] NSWDC 240, Tanya Youkhana [2011] NSWDC 63 and Saliba [2010] NSWDC 277. In each of those matters considerably more funds were the subject of the charges, particularly Youkhana and Peisley. In each of those matters the facts were quite distinct from those that are before me. I note that this offender is not to be sentenced for matters that were before the Court solely in relation to each of those other offenders. He is to be sentenced on the basis of the Agreed Facts presently before the Court. 12When I review the objective circumstances of this case and its degree of seriousness, while it is correct to note that the sum of $200,250 seems small when compared with the $10 million involved in Mr Peisley's matter, it is still a significant sum of money. As I noted during argument, it is a sum equivalent to that which the present offender received for a serious work injury and it would take the average Australian many years to earn such a significant sum of money. I accept that the offender was, as I have said, acting as a warehouser. It would appear that there is some evidence of reward, if only the rent that was paid by Ms Saliba. There may have been other rewards but I have no evidence of them presently before me. 13There has been considerable delay in dealing with this matter. No fault is placed on either party, it is a simple fact that four years have elapsed since the first charge. This time has enabled the offender to demonstrate that he can lead a law-abiding life. His referees assert that he is a man of good character. I am prepared to accept that he was, prior to the commission of these offences, a person of good character. I am prepared to accept that he has, over the last four years, demonstrated that he can resume and maintain a law-abiding life. The delay allows the Court to assess the offender now, not as he was at the time. That is to his advantage. The Court can now have confidence in him not re-offending. 14I cannot accept, however, the assertions in para 28 of the written submissions for the offender that he cannot state whose money it was and that he has no independent recollection of who in fact placed the money in his property. There is no evidence of those facts before me now and they appear to be at odds with the plea. The claim of no independent recollection has to be rejected. It does not sit with the hearsay protestations of remorse set out in the report of Mr Watson-Munro, Psychologist. 15That said, I have to take care that my having rejected this submission does not in any way aggravate the sentence that I must impose. It simply means that a matter of mitigation is not taken into account to the offender's benefit. There has been a practical expression of remorse in the plea of guilty and the willingness to facilitate the course of justice here and they are taken into account. I cannot accept, in the absence of sworn evidence, what falls from Mr Watson-Munro however in his psychological reports as evidence of actual remorse. I accept, however, the evidence in the report that the offender was born in Iraq in 1979. He has a solid family, school and work history. That work history continued until he was seriously injured in a work accident in May 1998. The injury was a significant one. It would have caused pain and I accept that as a consequence of it he suffered a significant disability. I am prepared to accept that some form of chronic pain would have continued. I am prepared to accept that in 2006 he commenced TAFE courses and re-trained as a personal trainer. 16The bank accounts that are before me did not indicate to any significant degree anything other than the history presently before me. I make no finding that he has lived off illicit crime or that the cash involved was anything other than being warehoused for someone else, presumably Mr Sparos. 17I am prepared to accept what Mr Watson-Munro says that over the past four years there has been anxiety and depression flowing from the lack of certainty as to what was happening in his case. It is quite clear to me that anyone who is facing the real prospect of a custodial sentence will be anxious, and possibly depressed, about the outcome and that considerable delay can have psychological consequences. I am also prepared to accept that there were psychological sequelae from the accident that are continuing. Such psychological vulnerability can, in the experience of the Court, lead to drug use and drug abuse. 18Drug use provides no excuse for the commission of offences such as this but it provides some explanation for a person of otherwise good character being less inhibited. It also allows the Court to have some understanding that serious and criminal errors of judgment can be made by a person such as the offender who might think it right or appropriate to involve themselves in criminal activity and make decisions that, were they not using drugs, they would reject. 19In relation to this matter I take into account the maximum penalty. I take into account the prior good character and the demonstrated good character while he has been on remand. As I said, on the evidence before me I am prepared to accept that the offender is unlikely to re-offend. I take into account all the subjective matters that I have noted and the references that are set out in Exhibit 1. Importantly, I take into account my assessment of the objective seriousness of this offence. This type of offence is one that clearly calls for a sentence that must operate, so far as practicable, to deter others from assisting those involved in the drug trade who would be tempted to hide their illicit gains. 20I am prepared to accept, given the amount of time he has been on remand and his good behaviour, that there is no further need for personal deterrence in the sentence that I impose. However, the conduct engaged by you, Mr Georges, must be denounced and the sentence I impose must recognise the harm caused to the community by such activity as you chose to become involved in. The sentence must also reflect the community interest in you continuing your demonstrated progress towards rehabilitation. 21This appears to have been a one-off offence and one unlikely to be repeated. That said, the objective circumstances of this offence and the sum involved require the imposition of a custodial sentence. I would indicate that, but for the plea of guilty, a sentence of one year and four months would have been imposed. Having reached that conclusion I have to ask myself, as is submitted by Mr Santisi, whether the suspension of the execution of the sentence is appropriate, given the strong subjective case made. The answer to that question when I look at the subjective case is, "Yes". 22I must then step back and ask: Can suspension of the execution of the sentence properly reflect the objective seriousness of what has occurred? I have given that question anxious consideration but it is always a significant step to impose a full time custodial sentence on a person of otherwise good character who has made real progress towards rehabilitation. The community interest in not setting back that rehabilitation justifies suspension of this sentence despite the objective seriousness of the offence. 23Ninos Georges, in relation to the offence of dealing in the proceeds of crime being reckless as to whether it was the proceeds of crime, you are convicted. I take into account in imposing the sentence the Form 1. 24I sentence you to a term of imprisonment of twelve months. Pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 I suspend the execution of that sentence upon you entering into a bond to be of good behaviour for a period of twelve months from today's date. 25In relation to the remaining matter on the s 166 certificate, goods suspected of being stolen, that is noted as being withdrawn and is formally dismissed. 26I would indicate simply Mr Georges that should there be any breach of this bond that sentence of imprisonment will be imposed upon you. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2011