District Court New South Wales Medium Neutral Citation: R v Tanya YOUKHANA [2011] NSWDC 63 Hearing dates: 22 February 2011 Decision date: 22 February 2011 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Count 1 - Financial reporting offence. Recognisance release order 1 year. Count 2 - Proceeds of crime offence. NPP 1 year 6 months with a balance of sentence of 6 months. The total effective sentence is 2 years with a NPP of 1 year 6 months. Catchwords: CRIMINAL - Proceeds of crime - Conduct transaction to avoid reporting requirements - Operation Schoale Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Financial Transaction Reports Act 1988 (Cth) Crimes Act 1914 (Cth) Cases Cited: Qutami (2001) 127 A Crim R 369 Weininger (2003) 212 CLR 629 Rule [2003] NSWCCA 97 Qian (2010) 201 A Crim R 403 Olbrich (1999) 199 CLR 270 Segal [2006] NSWSC 621 Au [2001] NSWCCA 468 Edwards (2008) 183 A Crim R 83 Saliba [2010] NSWDC 277 Johnson [2010] NSWDC 242 Peisley [2010] NSWDC 240 Postiglione (1997) 189 CLR 295 Jimmy (2010) 269 ALR 115 Zamagias [2002] NSWCCA 17 Category: Sentence Parties: Regina Tanya Youkhana Representation: Ms A Francis (Offender) Ms F Gray (Director of Public Prosecutions) File Number(s): 2008/258348 SENTENCE 1The offender, Tanya Youkhana, stands for sentence today for two offences. The first offence is knowingly deal with the proceeds of crime pursuant to s 193B(2) Crimes Act 1900 (NSW). That offence carries a maximum penalty of fifteen years imprisonment. The second offence is that she conducted a transaction to avoid reporting requirements pursuant to s 31(1) of the Financial Transaction Reports Act 1988 (Cth). 2Pleas of guilty to these charges were entered in the Local Court. 3There are Agreed Facts before the Court. These charges arose out of an investigation conducted by the New South Wales Crime Commission and the New South Wales Police Force given the name Operation Schoale. As a result of this operation a number of people have been charged with significant offences. 4One of those persons is a man by the name of Alen Moradian. The offender is the sister of Natasha Youkhana, who is married to Alen Moradian. 5In late March 2007 the offender rented a house in Bilgola. There was no formal rental agreement. The offender moved into the partly furnished house in March 2007 with her then partner. There was discussion with the owner of the premises about planting of a vegetable garden. 6The offender obtained a large amount of cash, sealed it in vacuum-sealed plastic bags, wrapped it and buried it in the garden of the house in Bilgola. The source of the cash buried by the offender was Alen Moradian and his associates. The offender buried the cash to conceal it from police. The offender did so in circumstances where she knew it was the proceeds of crime. Those circumstances included the use of the premises with no formal link to her or her family who had recently had search warrants carried out at their homes, the method of secreting the cash, and the large amount of cash. 7In early June 2007 the offender contacted the owner of the premises and advised that both she and her partner would like to move out of the house for family reasons. The offender advised that she still had some property at the house and she would collect it at a later date. 8On 23 June 2007 police executed a search warrant on the premises. Police located a number of items in the house that were relevant to the particular offence. Those items are set out in the photographs that are described in the Agreed Facts and are in evidence before me. 9The cash was found and it was conveyed in its packaging in sealed exhibit bags to the Westpac Bank. It was counted. It totalled $2,730,390. 10Also located in the attic of the house was a suitcase and other items which were fingerprinted. Those fingerprints, on analysis, were found to be those of the offender now before the Court. 11The brief facts in the Commonwealth matter are set out in the Agreed Facts. 12The offender had bank accounts in her name only with the Commonwealth Bank of Australia, the St George Bank and the National Australia Bank. The offender had a joint account with her sister, Natasha Youkhana, with the ANZ Bank. Numerous deposits were made into both bank accounts. The deposits were made either by the offender directly or by Natasha Youkhana, which the offender was also a party to, with the intention that jointly they would avoid the reporting requirements for AUSTRAC. 13During the period 22 January 2006 to 7 November 2006 thirty-eight cash deposits were made into the offender's accounts of amounts between $9,000 and $9,900. The amounts deposited totalled $347,207.51. 14The offender was arrested by police on the afternoon of 31 July 2007. She spent nine days in custody before being admitted to bail. Initially those bail conditions were particularly stringent but, over time, they were later reduced. 15As with many of the matters involved in Operation Schoale, they took an inordinate amount of time to progress in the Local Court. It would appear that, as with other matters, when a new prosecution team and a new defence team became involved, matters proceeded with proper speediness and the matters of fact and plea were resolved in the Local Court. Accordingly, the offender is entitled to the full benefit of her plea of guilty entered in the Local Court. In the State matter that would involve a reduction of sentence of twenty-five per cent. In the Commonwealth matter effectively the Court has to accord a similar benefit, taking into account her willingness to facilitate the course of justice. There is no argument here that she should receive the full benefit for an early plea of guilty. Other evidence 16The offender has been before the Courts before but for nothing that mirrors or reflects offences of the seriousness of the present matter. Despite those matters in the Local Court, I am prepared to find that she, apart from this present crime, is otherwise a person of good character. 17I have had the benefit of a Pre-Sentence Report and a report from Dr Allnutt. The offender's case has been supported by references from friends, from Archbishop Zaia and her father. The Court has received a letter from the offender, together with her curriculum vitae. No evidence on oath was received. Seriousness of the offences 18So far as the Commonwealth offence is concerned, the Agreed Facts reveal a course of thirty-eight transactions over about ten months, involving $347,207.51. The offender, in her letter, said she simply allowed her sister to use her accounts. To Probation and Parole she denied profiteering from what occurred. 19In the absence of reliable verified evidence, I am unpersuaded of any facts other than those set out in the Agreed Facts either in aggravation or mitigation of sentence. I have regard to the different standards of proof that apply to prosecution assertions and defence assertions. I make no finding she simply allowed her sister to use her accounts in the absence of sworn evidence. I am not prepared to accept untested evidence that attempts to minimise her moral culpability: Qutami (2001) 127 A Crim R 369. It is clear she was helping her sister and, I presume, her brother-in-law but the evidence is silent as to whether she was also helping herself and was motivated by greed. 20The evidence as to motivation cannot be resolved in a way that increases or decreases her moral responsibility: Weininger (2003) 212 CLR 629 at [22]. 21This conclusion applies to both offences before the Court. 22The Agreed Facts in relation to the Commonwealth matter reveal that: (a)the offender used her own accounts; (b)her efforts were relatively unsophisticated; (c)there is no evidence she knew the money was the proceeds of cocaine trafficking; (d)there is no evidence where the money came from or where it went; and (e)there were however thirty-eight transactions all at near to the $10,000 limit and the total of thirty-eight transactions amounted to $347,000 or thereabouts. 23I have regard to the objects of the Financial Transaction Reports Act 1988 (Cth) as set out in s 4. One of the objects is to facilitate the operation of other laws, both State and Federal. The Act is directed at a number of mischiefs but includes money laundering of the proceeds of crime: see Rule [2003] NSWCCA 97 at [6] and Qian (2010) 201 A Crim R 403 at paras [92]-[95]. 24So far as the State offence is concerned, it is a far more serious offence. Again, as with the Commonwealth offence, the evidence as to motivation was not on oath, nor was it tested. I must exercise considerable caution before accepting what the offender told the Probation and Parole Service and me, in her letter, about her motivations. I remain sceptical of her assertion that the sole motivation was solely to assist her sister and her brother-in-law, that is, solely an altruistic motive. Given the amount of cash and her knowledge as to its illicit source, it defies credulity that there would be no financial reward. She has not satisfied the onus of proof, on the balance of probabilities, that the motive was solely altruistic: see Olbrich (1999) 199 CLR 270, Weininger (2003) 212 CLR 629 and Qutami (2001) 127 A Crim R 369. 25I am left simply with the fact that she was involved in a transaction to assist Mr Moradian and others and that she knew the money was the proceeds of crime. She was aware it was a substantial sum. She knew that investigators were closing in on Mr Moradian and possibly her sister. She agreed to help him hide the money. She was involved, from the fingerprint evidence, in packing it and hiding it and she must have known it was a very considerable sum. It was in fact close to $2.7million. It was a relatively sophisticated attempt to secrete the money. She acted to help and provided a safe site while she was living there for some of the time. It does not quite have the appearance of warehousing, rather it appears to me to be one of secreting. There is no evidence she herself shared in any benefits of the large sum of money. She lived no lavish lifestyle. The amount alone, however, indicates the seriousness of this offence. The maximum penalty for offences where someone proceeds with knowledge that the proceeds of crime is greater than those where a person is merely reckless and spends the proceeds. 26The immense sums able to be taken from users by drug traders are clearly illustrated by this case. The trade in drugs causes immense harm to the community and to individuals. Black money in the community also undermines the community's economic well-being. To willingly assist in this process, knowing what she was doing and knowing the source of the money was illicit, makes this, when one considers the sum involved, a very serious crime indeed. Subjective case 27The offender is now nearly thirty-three. She has a solid and loving family. Her father came from Iraq. She presently resides with her parents and elder sister. Her parents are not well and she assists in their care. She entered the workforce with solid educational achievements. She has solid and sound work achievements. She has, with her sister, been able to run a small cafe business. That business was sold to her sister, as I understand it, in November 2010. 28The Probation and Parole Service says that no intervention is required. This is to her credit. They also note that she is unlikely to benefit from supervision. This is to her credit. It reflects a person who is otherwise of good character and has good prospects for rehabilitation in the future. 29Dr Allnutt, in his report, notes again the family history. He notes a period where, in her twenties, she made what are described as "bad lifestyle choices". There are reasons set out in the report for conflict with her family, who had traditional values. Her history reflects the abuse of alcohol and that may be explained by the matters set out in the report, matters personal to the offender. Her abuse of alcohol explains the criminal record that is before the Court. 30Dr Allnutt notes no psychiatric or psychological issues that impacted on the offence. He notes the impact of significant stressors, not the least the arrest in 2007 and the impact of the considerable delay in bringing this matter to a conclusion. 31Those are all matters that I take into account. 32It would appear that life was going reasonably well for the offender at the time of her arrest. She is now struggling and, to the extent that the stressors have operated on her for over three years, she will need psychological assistance. The delay was not her fault, nor was it the fault of the prosecution but it has had an impact upon her. 33She reports to Dr Allnutt that at the time of the offence she was naive and unaware of the import of such an offence, but she clearly now does understand the impact that cocaine sales in the community can have. That is set out in the report from Mr Sapsford and Ms Wilcox. That reference indicates the work done by the offender to assist their son in dealing with his own cocaine problems. 34I am prepared to accept that her involvement with Mr Moradian was limited to the two offences. They are the only offences for which she is to be sentenced. That finding means that she did not actively involve herself in the extended crimes with which others associated with Mr Moradian involved themselves. 35I find that she is unlikely to re-offend if given appropriate support when she returns to the community. She certainly has strong community and family support. 36I accept that Bishop Zaia was truly surprised and saddened when he found out about these offences. I accept his evidence when he spoke of her regret and remorse. 37In a letter to me the offender accepted responsibility for her actions. That reflects the character of the woman who stands for sentence before me. She said she did not think. I accept that. She said there was no close relationship with Mr Moradian. It appears the relationship with her sister fluctuated. I am prepared to accept this and I am prepared to accept that her crime shows considerable naivety. That said, the seriousness of the particular offence involving the proceeds of crime must have been obvious to a woman of her obvious intelligence. The fact that she was engaging in serious illegality must have been obvious to her. 38I take into account that for a period of time she was on strict bail conditions. 39Clearly the delay has had a serious and significant detrimental impact on her but it has also allowed her to demonstrate her capacity to lead a law-abiding life. As a consequence of her arrest and the delay there has been a considerable personal deterrent operating on her. The sentence I impose need not reinforce that aspect further and it need not be increased for that aspect of the purposes of sentencing relating to personal deterrence. 40I have had regard to the maximum penalties. I have had regard to the plea and her willingness to facilitate the course of justice. 41So far as the Commonwealth offence is concerned, I have had regard to what is set out in s 16A of the Crimes Act 1914 (Cth) and the principle of general deterrence which is not set out in that section. I note s 17A. I note the purposes of the legislation and the various authorities to which I was referred, including Rule [2003] NSWCCA 97, Segal [2006] NSWSC 621, Au [2001] NSWCCA 468 and Edwards (2008) 183 A Crim R 83. 42I note, as Ms Francis reminded me, that this was not a s 400 Code offence. 43Had this matter stood alone I would have seriously considered a Community Service Order but because of the sentence I intend to impose on the other matter community service could not be completed. 44Given the other sentence to be imposed, no sentence other than custody is appropriate for this matter but as this matter was first in time and effectively her first serious offence it will be subject to an immediate release order pursuant to s 20 (1)(b) of the Crimes Act 1914 (Cth). 45As to the Crimes Act 1900 (NSW) offence, this is a very significant offence as I have found. I must have regard to all the relevant purposes of sentencing. As I have noted, I find there is no need for further increase of the sentence for specific deterrence. She is well on the way toward rehabilitation. 46If the sentence was just for the offender's benefit, a non-custodial sentence might be appropriate. However, sentences serve other purposes. Her conduct must be denounced. The harm to the community must be recognised. Sentences should operate, so far as is practicable, to deter others from committing similar offences. There must be adequate punishment. 47These principles apply to different degrees to both the total sentence and to its non-parole period. I have regard to those purposes, which do not all point in one way. I note the Judicial Commission statistics but those statistics say nothing about the circumstances of offences of this nature and the amounts involved. 48I have regard to the sentences imposed by me on others involved in Operation Schoale. The circumstances in this case are different from those involving Saliba [2010] NSWDC 277, Johnson [2010] NSWDC 242 and even Peisley [2010] NSWDC 240, particularly in Mr Peisley's case as to the amount of money secreted. 49Unlike Ms Saliba who spent her husband's money reckless as to its source, the present offender deliberately chose to involve herself to a significant, if subordinate, degree in hiding the proceeds of a major cocaine supply operation. Whether she knew or not the source of that money was cocaine supply she certainly was aware it was obtained illegally and she is astute enough to have guessed at its possible source. 50I have regard to what fell from the High Court in Postiglione (1997) 189 CLR 295 and the Court of Criminal Appeal in Jimmy (2010) 269 ALR 115 about proportional sentences as between those involved in the same criminal enterprise, even where the actual offences differ, but each sentencing exercise is different and each offender an individual. 51I have considered suspending execution of the sentence that I have ultimately determined should be imposed. Before a court extends the benefit of that section in the Crimes (Sentencing Procedure) Act 1999 (NSW) it must step back and consider all the purposes of sentencing. Here, a strong subjective case cannot obscure a proper evaluation of what the offender did and the nature of the offence to which she has pleaded guilty: see Zamagias [2002] NSWCCA 17 at [34]. 52I have had regard to the submissions of the solicitor for the Director of Public Prosecutions and her suggested range. I have had regard to the forceful and persistent submissions of Ms Francis. 53This is a matter where only a full time custodial sentence can do justice to the seriousness of the offence committed. 54I do not believe a finding of special circumstances is required, despite this being the offender's first time in custody. Her rehabilitation is well under way. Supervision is not required and she will be assisted by friends and family on release. Further, and importantly, all the matters that would occasion a reduction in the non-parole period and the subjective matters before me have been taken into account in significantly reducing the overall sentence that would otherwise be appropriate. A further reduction of the non-parole period would result, in my opinion, in a sentence that would not reflect the criminality of what was done here. 55In relation to the Commonwealth offence s 31(1) of the Financial Transaction Report Act 1988 (Cth), you are convicted and sentenced to a term of imprisonment of one year, to commence today and expire on 21 February 2012. I direct that you be released forthwith upon you entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), yourself in the sum of $200 to be of good behaviour for one year and to appear for sentence if called upon. 56I am required to explain that sentence to you Ms Youkhana. It means that if this was the only offence before the Court you would have been convicted and given an effective suspended sentence of one year. Unfortunately for you it is not the only matter before the Court. 57In relation to the s 193B(2) Crimes Act 1900 (NSW) offence, you are convicted. I note that, but for the plea of guilty, a sentence of two years and eight months would have been imposed. I take into account the nine days pre-sentence custody. You are sentenced to a non-parole period of one year and six months imprisonment, to commence on 13 February 2011 and expire on 12 August 2012 on which date you will be released to parole. I fix a parole period of six months, to date from 13 August 2012 and expire on 12 February 2013. ********** 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